JOHNSON, ANTHONY EUGENE Appeal from 292nd District Court of Dallas County (other per curiam)
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IN THE COURT OF CRIMINAL APPEALS OF TEXAS NOS. WR-82,850-01 & -02 EX PARTE ANTHONY EUGENE JOHNSON, Applicant ON APPLICATIONS FOR WRITS OF HABEAS CORPUS CAUSE NOS. W08-71994-V(A) & W11-00273-V(A) IN THE 292ND JUDICIAL DISTRICT COURT FROM DALLAS COUNTY Per curiam. OPINION 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 these applications for writs of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of aggravated assault and manslaughter and sentenced to ten and twenty years’ imprisonment, respectively. The Fifth Court of Appeals affirmed his convictions. Johnson v. State, Nos. 05-12-00743-CR & 05-12-00744-CR (Tex. App.—Dallas July 3, 2013)(not designated for publication). Applicant contends, among other things, that his trial counsel rendered ineffective assistance because counsel failed to pursue a defense of involuntary conduct in the aggravated assault case, and 2 failed to pursue defense of a third person in the murder case. Applicant alleges that he maintained that the shooting was an accident, but that trial counsel insisted on pursuing a theory of self defense, which was negated when the trial judge refused to include an instruction on self defense in the jury charge. On October 7, 2015 the parties were ordered to brief the following issues: A. Whether the standard for harm set out in Vasquez v. State, 830 S.W.2d 948 (Tex. Crim. App. 1992), is the proper standard when trial counsel fails to request a jury instruction. In Vasquez, this Court held that, due to trial counsel’s failure to request an instruction on the defensive issue of necessity, the jury was precluded from giving affect to the appellant’s defense and that “in itself undermines our confidence in the conviction sufficiently to convince us that the rest of the trial might have been different had the instruction been requested and given.” Id. at 951; and B. Whether counsel rendered ineffective assistance in this case. Subsequently, this Court received a letter, in both cases, that the Findings of Fact and Conclusions of Law signed by the original habeas judge had been vacated. The original habeas judge stated he was recusing himself due to his former involvement in the case due to his participation in the cases as a prosecutor. The order vacating the Findings of Fact and Conclusions of Law was included with the letter. Because this Court’s briefing order was premised on vacated Findings of Fact and Conclusions of Law, the matter was held in abeyance so that the trial court could resolve the fact issues. On May 2, 2016, new Findings of Fact and Conclusions of Law were received by this Court by a judge appointed by the regional administrative judge. Those findings, contrary to the prior findings, recommend denying relief. Based on these new Findings of Fact and Conclusions of Law, we find that Applicant’s claims are without merit. Therefore, we withdraw this Court’s briefing order 3 from October 7, 2016 and we deny relief. Delivered: Do not publish November 2, 2016
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