EX PARTE BILLY E. HETTINGER (other)

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-69,621-01

EX PARTE BILLY E. HETTINGER, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. A04-56-1 IN THE 216TH DISTRICT COURT

FROM KERR 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 aggravated sexual assault of a child and sentenced to life imprisonment. The Fourth Court of Appeals affirmed his conviction. Hettinger v. State, No. 04-04-00920-CR (Tex. App. - San Antonio, pet ref'd).

Applicant contends that his trial counsel rendered ineffective assistance because counsel failed to investigate Applicant's assertions that his video taped statement: (1) was the product of a custodial interrogation that was conducted without Applicant having been informed of his rights under Miranda v. Arizona, 384 U.S. 436 (1966); (2) was involuntary; (3) was taken in violation of his right to remain silent; and (4) was taken in violation of his right to counsel. Applicant appears to contend that as a result of counsel's failure to investigate, counsel did not discover and present evidence that would have supported a motion to suppress the video taped statement and counsel did not take appropriate steps to object to the admission of the video tape or present excised portions of the video tape that would have supported Applicant's assertions.

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 provide Applicant's trial counsel with the opportunity 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). 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: April 30, 2008

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