EX PARTE KENNETH JOHN COBURN (other)

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NOS. WR-70,766-01 & -02

EX PARTE KENNETH JOHN COBURN, Applicant

ON APPLICATIONS FOR WRIT OF HABEAS CORPUS

CAUSE NOS. 05-11-7340-A & 05-11-7326-A IN THE

24TH DISTRICT COURT FROM JACKSON 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 two counts of aggravated assault and sentenced to twelve years' imprisonment. The Thirteenth Court of Appeals dismissed his appeals. Coburn v. State, Nos. 13-07-754-CR & 13-07-755-CR (Tex. App. - Corpus Christi, delivered March 20, 2008, no pet.).

Applicant contends that his guilty pleas were involuntarily entered, he was incompetent to stand trial and his trial counsel rendered ineffective assistance. 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 making 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 court shall include within those findings a summary of what evidence the State would have presented if Applicant had not pled guilty, what evidence Applicant might have presented to establish that he did not have the culpable mental state to commit these offenses, whether Applicant suffered any head injury which either rendered him incompetent to stand trial or affected his ability to enter knowing and voluntary pleas in these causes, and why counsel did not litigate any of these issues. 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: October 29, 2008

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