EX PARTE KENNETH NEAL RATLIFF (other)

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-75,390-01

EX PARTE KENNETH NEAL RATLIFF, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 13735-A IN THE 29TH DISTRICT COURT

FROM PALO PINTO 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 assault on a public servant and sentenced to thirty years' imprisonment. After appellate counsel filed an Anders brief, the Eleventh Court of Appeals affirmed his conviction. Ratliff v. State, No. 11-08-00231-CR (Tex. App.-Eastland, January 22, 2009).

Applicant contends that his trial counsel rendered ineffective assistance by his failure to investigate an invalid enhancement, and by eliciting prior conviction testimony from Applicant which had been ruled inadmissible for impeachment purposes prior to trial. He also alleges that appellate counsel was ineffective for failing to raise trial court error for denying a requested instruction for a lesser included offense.

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 a response from Applicant's trial and appellate counsels 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 as to whether Brown County cause number 12,503 was used as an enhancement of the instant sentence and if so, whether Applicant's initial sentence of community supervision had been revoked prior to the current sentence being imposed. The trial court shall make findings as to whether trial counsel had a strategic reason to question Applicant about all of his prior convictions, and whether Applicant was harmed by those questions from counsel. The trial court shall make 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. The trial court shall make findings as to whether trial counsel requested a lesser included offense instruction, whether the evidence supported the giving of such an instruction, and if so, whether Applicant suffered some harm by the failing of the trial court to give such an instruction. The trial court shall also make findings of fact as to whether the performance of Applicant's appellate counsel 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: August 24, 2011

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