Opinion

Brown, Aubrey Freeman

Court
Court of Criminal Appeals of Texas
Filed
Oct 1, 2008
Status
Published
Cited by
0 cases
Authority
More cited than 38.1%

The opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR- 70,620-01

EX PARTE AUBREY FREEMAN BROWN, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 05-0168X IN THE 71 ST DISTRICT COURT

FROM HARRISON 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 pleaded nolo contendere , was

convicted of aggravated assault, and sentenced to twenty years' imprisonment. He did not appeal

his conviction.

Applicant contends, inter alia , that his trial counsel rendered ineffective assistance by failing

to request a mental competency hearing even though he knew Applicant had a history of mental

illness and failing to investigate the facts of the case, specifically whether or not Applicant was

aware that his dogs had attacked anyone previously.

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 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

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 1, 2008

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