EX PARTE ROY MACK MILLER, JR. (other)

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-75,551-01

EX PARTE ROY MACK MILLER, JR. , Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. CR2006-233 IN THE 207TH DISTRICT COURT

FROM COMAL 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 manslaughter and sentenced to eleven years' imprisonment. The Third Court of Appeals affirmed his conviction. Miller v. State, No. 03-07-00527-CR (Tex. App.-Austin Jan. 13, 2010) (unpublished).

Applicant contends, inter alia, that his trial counsel rendered ineffective assistance. Applicant alleges that trial counsel had him sign a stipulation of evidence that established some of the elements of manslaughter by misleading applicant into thinking he was signing a document affirming that he had rejected a plea offer. Applicant also alleges that counsel allowed the State to re-open its guilt innocence case and sponsor unsworn testimony from the decedent's young sister relating to the impact of the decedent's death on her and her family. Applicant also alleges that counsel was ineffective for not requesting the inclusion of the affirmative defense of necessity in the jury charge. The record contains no response from the State or trial counsel and no findings of fact and conclusions of law from the trial court.

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 a response from Applicant's trial counsel addressing 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. Specifically, the trial court shall make findings addressing whether Applicant executed a stipulation relieving the State of their burden of proof on some of the elements of the offense. If so, the trial court shall make findings as to whether trial counsel misled Applicant as to the effect of the stipulation. The trial court shall also make specific findings as to whether the State sponsored testimony concerning the impact of the decedent's death on his family during the guilt/innocence phase of trial and, if so, whether counsel objected. If such testimony was proffered and counsel did not object, the trial court shall make findings as to whether this failure constituted ineffective assistance of counsel. Finally, the trial court shall make findings as to whether counsel requested submission of the affirmative defense of necessity in the jury charge. If counsel did not request submission of a necessity defense, the trial court shall make findings as to whether this constituted ineffective assistance of counsel. 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: May 25, 2011

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