EX PARTE LEE SCOTT CLEMONS (other)

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NOS. WR-75,513-01, WR-75,513-02 & WR-75,513-03

EX PARTE LEE SCOTT CLEMONS, Applicant

ON APPLICATIONS FOR WRITS OF HABEAS CORPUS

CAUSE NOS. CR18527-A, CR18529-A & CR18530-A

IN THE 35TH JUDICIAL DISTRICT COURT FROM BROWN 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 these applications for writs of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of one charge containing two counts of aggravated sexual assault of a child, and two charges of indecency with a child by exposure. He was sentenced to ninety-nine years' imprisonment for each count of aggravated sexual assault of a child, and ten years' imprisonment for each of the indecency with a child charges. The Eleventh Court of Appeals affirmed his convictions. Clemons v. State, Nos. 11-08-00046-CR, 11-08-00047-CR & 11-08-00048-CR, pet. ref'd).

Applicant contends, inter alia, that his trial and appellate counsel rendered ineffective assistance for a number of reasons. Applicant alleges that trial counsel failed to exercise peremptory strikes to remove potentially biased jurors, failed to object to the introduction of multiple outcry witnesses by the State, failed to object to inadmissible propensity evidence under Texas Rules of Evidence 404 and 405, failed to object to an erroneous medical opinion, failed to object to a witness who had been manipulated, failed to object to DNA evidence as the fruit of an unconstitutional search, failed to object to a violation of Texas Rule of Evidence 614, and failed to object to improper arguments by the prosecutor. Applicant also alleges that neither trial counsel nor appellate counsel filed a motion for new trial to preserve errors for direct appeal.

Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 608 (1984); Ex parte Lemke, 13 S.W.3d 791,795-96 (Tex. Crim. App. 2000). In these circumstances, additional facts are needed. As we held in Ex parte Rodriguez, 334 S.W.2d 294, 294 (Tex. Crim. App. 1960), the trial court is the appropriate forum for findings of fact. The trial court shall provide Applicant's trial and appellate counsel with the opportunity to respond to Applicant's claims of ineffective assistance of counsel. The trial court may use any means set out in Tex. Code Crim. Proc. art. 11.07, § 3(d). In the appropriate case, the trial court may rely on its personal recollection. Id.

If the trial court elects to hold a hearing, it shall determine whether Applicant is indigent. If Applicant is indigent and wishes to be represented by counsel, the trial court shall appoint an attorney to represent Applicant at the hearing. Tex. Code Crim. Proc. art. 26.04.

The trial court shall make findings of fact as to whether trial or appellate counsel represented Applicant during the applicable period for filing a motion for new trial, whether that attorney considered filing a motion for new trial, and if not, why not. The trial court shall also make findings as to whether the performance of Applicant's trial attorney and appellate attorney was deficient and, if so, whether trial or appellate counsel's deficient performance prejudiced Applicant. The trial court shall also make any other findings of fact and conclusions of law that it deems relevant and appropriate to the disposition of Applicant's claim for habeas corpus relief.

These applications will be held in abeyance until the trial court has resolved the fact issues. The issues shall be resolved within 90 days of this order. If any continuances are granted, a copy of the order granting the continuance shall be sent to this Court. A supplemental transcript containing all affidavits and interrogatories or the transcription of the court reporter's notes from any hearing or deposition, along with the trial court's supplemental findings of fact and conclusions of law, shall be returned to this Court within 120 days of the date of this order. Any extensions of time shall be obtained from this Court.

Filed: April 6, 2011

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