EX PARTE JAMES WILLIAM HORNSBY (other)
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IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-60,537-04
EX PARTE JAMES WILLIAM HORNSBY, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 84675 IN THE CRIMINAL DISTRICT COURT
FROM JEFFERSON COUNTY
Per curiam.
O R D E R
Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the clerk of the trial court transmitted to this Court this application for a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of murder and sentenced to fifty years' imprisonment. The Ninth Court of Appeals affirmed his conviction. Hornsby v. State, No. 09-06-00273-CR (Tex. App.-Beaumont Jan. 16, 2008, pet. ref'd).
On September 8, 2010, we remanded this application and directed the trial court to make findings of fact and conclusions of law as to whether trial counsel rendered ineffective assistance and whether Edward Holland and Anthony Benjamin committed perjury at Applicant's trial. On remand, after holding a live evidentiary hearing, the trial court made findings of fact and conclusions of law and recommended that we deny relief. We agree with the trial court's recommendation but decline to adopt those findings that rely on counsel's October 25, 2010 affidavit. In this affidavit, counsel responded in almost every instance that Applicant's claims are procedurally barred under Article 11.07, § 4 of the Code of Criminal Procedure. Counsel also responded that Applicant should have raised his ineffective assistance of counsel claims on direct appeal. Applicant's claims are not procedurally barred under § 4, and we have held that in the majority of cases the record on direct appeal is not adequate to resolve an ineffective assistance of counsel claim. Thompson v. State, 9 S.W.3d 808, 813-14 (Tex. Crim. App. 1999) ("In the majority of instances, the record on direct appeal is simply undeveloped and cannot adequately reflect the failings of trial counsel"). Relief is denied.
Filed: March 9, 2011
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