EX PARTE MARK SMITH (other)

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-76,107-01

EX PARTE MARK SMITH, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 25073-C IN THE 89TH JUDICIAL DISTRICT COURT

FROM WICHITA 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 murder and sentenced to life imprisonment. The Second Court of Appeals affirmed his conviction. Smith v. State, No. 02-89-00084-CR (Tex. App. - Fort Worth, January 29, 1992, pet. ref'd).

Applicant contends, inter alia, that his trial counsel rendered ineffective assistance because counsel failed to investigate, failed to adequately cross-examine the State's witnesses, and failed to call witnesses to testify for the defense.

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 an affidavit from Applicant's trial counsel responding to Applicant's claims of ineffective assistance of counsel. Specifically, counsel shall describe the investigation performed prior to trial, and shall state whether he considered subpoenaing the victim's father-in-law and Robert Brazil to testify for the defense. Counsel shall also state whether he cross-examined the coroner regarding which bullet actually caused the victim's death, and whether he elicited testimony from the police officer who stopped Applicant in Colorado regarding whether Applicant was behaving like a fugitive when he was stopped. Counsel shall state whether he sought to impeach the State's witness Dennis Wiggins with prior inconsistent statements, or by calling other jail inmates to undermine Wiggins' credibility. Counsel shall state whether one of the State's witnesses testified to seeing someone other than Applicant firing into the victim's car at the scene, and if so, whether counsel argued that this testimony did not support Applicant's guilt. 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 the performance of Applicant's trial 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: August 24, 2011

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