EX PARTE KENNETH DUANE BALENTINE, Applicant (Other)

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS

NO. WR-76,859-01
EX PARTE KENNETH DUANE BALENTINE, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 57,111-B IN THE 181ST DISTRICT COURT
FROM POTTER 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). A jury convicted Applicant of murder, and the trial court sentenced him to twenty-five years' imprisonment. The conviction and sentence were affirmed on direct appeal in an unpublished opinion. Balentine v. State, No. 07-10-00070-CR (Tex. App. -- Amarillo del. Apr. 8, 2011). There was no Petition for Discretionary Review.

In this writ application, Applicant, through habeas counsel, raises several claims alleging trial counsel provided ineffective assistance. Applicant argues trial counsel: failed to investigate and adequately advise him regarding the case or to inform him of the evidence in the State's possession, including photos of the crime scene, preventing him from being able to properly assess the strength of the State's case and its plea offers; failed to contact the witnesses Applicant told counsel about; failed to timely inform Applicant of a 15-year plea offer for manslaughter; failed to advise Applicant regarding parole eligibility so Applicant could consider the State's plea offers in the proper context; failed to request a limiting instruction regarding damaging testimony given by Applicant's son; improperly believed Applicant was eligible for probation if convicted of murder, which prevented Applicant from making informed decisions about his case; and failed to advance a sudden passion argument to the court at punishment. These claims are cognizable on habeas review and are evaluated according to the standards set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984). But without an affidavit from trial counsel responding to Applicant's assertions and explaining applicable trial strategy, it is difficult to assess Applicant's claims.

Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. at 668; 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. In addition to obtaining this affidavit, the trial court may use any means set out in Tex. Code Crim. Proc. art. 11.07, § 3(d) to resolve factual issues in dispute. In the appropriate case, the trial court may rely on its personal recollection. Id. If the trial court elects to hold a hearing and if Applicant is not represented by counsel, the trial court 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 him 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 counsel was deficient and, if so, whether counsel's deficient performance prejudiced Applicant. The trial court shall also make any other findings of fact 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, 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: January 11, 2012

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