EX PARTE RONALD WAYNE HARRISON (other)

Texas Judiciary Online - HTML Opinion     Close This Window

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-40,355-03

EX PARTE RONALD WAYNE HARRISON, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 4205 IN THE 271ST DISTRICT COURT

FROM JACK 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 writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of indecency with a child by contact and sentenced to life imprisonment. The Seventh Court of Appeals affirmed his conviction. Harrison v. State, No. 07-08-0155-CR (Tex. App.-Amarillo Oct. 30, 2008 pet. ref'd) (not designated for publication).

After a remand to address Applicant's claims of ineffective assistance of counsel, trial counsel responded with an affidavit and the trial court recommended denying relief. One of Applicant's allegations is that counsel did not allow him to "testify or be heard." Counsel answered that Applicant did not testify as a matter of trial strategy. While this may be true, the decision to testify belongs to the defendant. "[D]efense counsel shoulders the primary responsibility to inform the defendant of his right to testify, including the fact that the ultimate decision belongs to the defendant." Johnson v. State, 169 S.W.3d 223, 235 (Tex. Crim. App. 2005).

Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 608 (1984); Rock v. Arkansas, 483 U.S. 44, 50-53 (1987). 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 order Applicant's trial counsel to respond to Applicant's claim 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 supplemental findings of fact as to whether the performance of Applicant's trial attorney was deficient and, if so, whether counsel's deficient performance prejudiced Applicant. Specifically, the trial court shall make findings as to whether counsel appropriately advised Applicant about his right to testify on his own behalf, whether he prevented him from testifying against his wishes, and if so, whether Applicant was harmed under Strickland. 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 claims 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: June 15, 2011

Do not publish