EX PARTE JETHREL ROUNDTREE, JR. (other)

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-74,550-01

EX PARTE JETHREL ROUNDTREE, JR., Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 1107025 IN THE 184TH DISTRICT COURT

FROM HARRIS 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 delivery of a controlled substance and sentenced to eighty years' imprisonment. The Fourteenth Court of Appeals affirmed his conviction. Roundtree v. State, No. 14-07-00876-CR (Tex. App.-Houston [14th Dist.] Feb. 19, 2009, pet. ref'd).

Applicant contends, among other things, that trial counsel rendered ineffective assistance because he failed to prevent the State from eliciting extraneous misconduct evidence from James Graham. On November 10, 2010, we remanded this application and directed the trial court to make findings of fact and conclusions of law after obtaining a response from trial counsel. On remand, trial counsel filed a sworn affidavit in response to Applicant's claim, and the trial court made findings of fact and concluded that Applicant had not established that trial counsel's performance was deficient and that Applicant was prejudiced.

In a supplement filed with this Court, the Honorable Jan Krocker noted that on February 7, 2011, when she adopted the State's proposed findings of fact and conclusions of law, she was unaware that Applicant had filed a motion to recuse. On February 22, Judge Krocker declined to recuse herself and referred the matter to the Honorable Olen Underwood, the Presiding Judge of the Second Administrative Judicial Region. Tex. R. Civ. P. 18a. On March 28, we received a copy of Judge Underwood's order denying Applicant's motion to recuse.

The requirements of Rule 18a apply to habeas proceedings in trial courts. Ex parte Sinegar, 324 S.W.3d 578 (Tex. Crim. App. 2010). Because a motion to recuse was pending when Judge Krocker adopted the State's proposed findings and conclusions, we decline to adopt her findings and conclusions. (1) We believe that Judge Krocker should make new findings and conclusions, as we explain below.

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 may use any means set out in Tex. Code Crim. Proc. art. 11.07, § 3(d).

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 him at the hearing. Tex. Code Crim. Proc. art. 26.04.

The trial court shall make further findings of fact and conclusions of law as to whether Applicant or the State opened the door to testimony that Graham had purchased cocaine from Applicant on six to eight previous occasions. If the trial court finds that the State improperly opened the door to this testimony, the trial court shall determine whether trial counsel's performance was deficient because he failed to properly object. If the trial court concludes that his performance was deficient, it shall determine whether Applicant was prejudiced. In determining whether Applicant was prejudiced, the trial court shall set out the reasons for its determination. 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 6, 2011

Do not publish

1. Under Rule 18a(c), after a motion to recuse is filed, before "any further proceedings in the case, the judge shall either recuse himself or request the presiding judge of the administrative judicial district to assign a judge to hear such motion."