EX PARTE MICHAEL DEE HOWARD (other)

OF TEXAS

NO. WR-73,183-01

EX PARTE MICHAEL DEE HOWARD, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 4321 IN THE 216TH DISTRICT COURT

FROM GILLESPIE 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 a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of aggravated assault and sentenced to twenty years imprisonment. The Fourth Court of Appeals affirmed his conviction. Howard v. State, No. 04-05-00388-CR (Tex. App. San Antonio 2007, pet. ref d).

On September 29, 2010, we dismissed this application for non-compliance. Tex. R. App. P. 73.1. We now withdraw that dismissal on our own motion and remand this application for findings of fact and conclusions of law. Applicant contends, among other things, that trial counsel rendered ineffective assistance because they: (1) failed to raise an insanity defense, Tex. Pen. Code 8.01; (2) failed to introduce Applicant s mental health records at trial and to retain or request the appointment of a mental health expert; (3) failed to object to multiple instances of extraneous misconduct evidence, Tex. R. Evid. 404(b), and to request limiting and burden of proof instructions; (4) failed to investigate and interview Michael A. Wallendorf, Michael Colwell, and Rodger Glenn; (5) elicited extraneous misconduct evidence from the complainant and Applicant s estranged wife; and (6) failed to file a business records affidavit. Tex. R. Evid. 902(10).

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 order trial counsel, David I. Cunningham and Ryan Moe, to respond to Applicant s ineffective assistance of counsel claims. 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.

Applicant appears to be represented by counsel. If he is not and 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 him at the hearing. Tex. Code Crim. Proc. art. 26.04.

The trial court shall make findings of fact and conclusions of law as to whether the performance of trial counsel was deficient and, if so, whether their 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 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 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: December 8, 2010

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