EX PARTE CHARLES JOHNSON BENEDICT (other)

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-76,038-01

EX PARTE CHARLES JASON BENEDICT, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 380-82018-06 IN THE 366TH JUDICIAL DISTRICT COURT

FROM COLLIN 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 three counts of aggravated sexual assault of a child and sentenced to three consecutive life sentences. The Fifth Court of Appeals affirmed his conviction. Benedict v. State, No. 05-07-01384-CR (Tex. App. - Dallas, December 15, 2008, pet. ref'd).

Applicant contends, inter alia, that his trial counsel rendered ineffective assistance because counsel withheld information about the search and arrest warrants during plea negotiations, causing Applicant to decline plea offers which he would have otherwise accepted. Applicant also alleges that counsel failed to object on the ground that the search warrants were untimely returned to the issuing court, that counsel failed to challenge Applicant's statements at the scene of the search on Fifth Amendment grounds, and that counsel failed to raise a challenge to the validity of the probable cause affidavits given in support of the search and arrest warrants.

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. 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: September 7, 2011

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