& EX PARTE JACKY CLAY REYNOLDS (other)

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NOS. WR-70,991-02 & WR-70,991-03

EX PARTE JACKY CLAY REYNOLDS, Applicant

ON APPLICATIONS FOR WRITS OF HABEAS CORPUS

CAUSE NOS. 417629 & 417630

IN THE 8TH DISTRICT COURT FROM HOPKINS 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 count of attempted indecency with a child and one count of indecency with a child. Applicant's first sentences were overturned by the Sixth Court of Appeals. Reynolds v. State, 227 S.W.2d 355 (Tex. App.-Texarkana, 2007); Reynolds v. State, No. 06-05-00155-CR (Tex. App.-Texarkana, May 31, 2007). After re-sentencing, he was sentenced to fifty years' imprisonment on each count. He did not appeal that re-sentencing.

Applicant contends that his trial counsel rendered ineffective assistance by failing to secure a witness' testimony, failing to object to a rebuttal witness' testimony based on its prejudicial effect, and failing to seek a limiting instruction on extraneous bad acts evidence. Applicant contends that his appellate counsel rendered ineffective assistance by failing to raise trial court error for the denial of a defense's motion for continuance due to a witness' unavailability and for the trial court's ruling that allowed a rebuttal witness to testify regarding extraneous bad acts by Applicant.

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 obtain responses from Applicant's trial counsel and appellate counsel regarding 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).

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 the performance of Applicant's trial attorney or appellate attorney was deficient and, if so, whether 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.

This application 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: May 4, 2011

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