               IN THE COURT OF CRIMINAL APPEALS
                           OF TEXAS
                                        NO. WR-90,958-01


                              EX PARTE JONAS SMITH, Applicant


                 ON APPLICATION FOR A WRIT OF HABEAS CORPUS
             CAUSE NO. D-1-DC-13-205993-A IN THE 299TH DISTRICT COURT
                              FROM TRAVIS COUNTY


       Per curiam.

                                             ORDER

       Applicant was convicted of aggravated assault and sentenced to twenty-seven years’

imprisonment. The Fourteenth Court of Appeals affirmed his conviction. Smith v. State, 491

S.W.3d 864 (Tex. App. — Houston [14th Dist.] April 12, 2016), pet. ref’d. Applicant filed this

application for a writ of habeas corpus in the county of conviction, and the district clerk forwarded

it to this Court. See TEX . CODE CRIM . PROC. art. 11.07.

       Applicant contends, among other things,1 that trial counsel was ineffective for numerous

reasons. Applicant first alleges that trial counsel advised him incorrectly prior to trial that the



       1
           This Court has reviewed Applicant’s other claims and finds them to be without merit.
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defense would be able to use recordings of conversations between Applicant and the complainant

while Applicant was in jail to impeach the complainant’s credibility at trial. Applicant also alleges

that trial counsel assured him that he would be able to testify about an altercation between Applicant

and the complainant the day before the offense in order to show that Applicant was acting in self-

defense on the day of the offense. As a result of this erroneous advice, Applicant alleges that he

declined all pre-trial plea offers and insisted on going to trial on the charges.

       Applicant alleges that trial counsel incorrectly argued in the defense motion to suppress that

Applicant had been arrested without a warrant by an officer who (according to Applicant) arrived

after he had been arrested by a security officer.

       Applicant alleges that trial counsel failed to adequately investigate and interview witnesses

including Dawn Carruthers, Tony Smith, Lillie Ransom, Teri Hunter, Camille Smith and Cornelia

Smith who would have supported Applicant’s claim of self-defense, and failed to interview the

State’s witnesses and obtain evidence that could have been used to impeach the complainant’s

credibility. Applicant alleges that trial counsel failed to advance the only viable defensive theory,

that Applicant acted in self-defense.

       Applicant alleges that trial counsel failed to seek admission of the recordings of jailhouse

phone calls and visits between Applicant and the complainant pursuant to Rules 106, 107 and

803(24) of the Texas Rules of Evidence, and failed to argue that evidence of the altercation between

Applicant and the complainant the day before the offense was admissible to show both that the

complainant was the first aggressor in the offense for which Applicant was on trial and that

Applicant was reasonable in his fear of the complainant at the time of the offense.

       Applicant alleges that trial counsel failed to object when the complainant testified about
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Applicant’s state of mind on the basis that she had no personal knowledge of Applicant’s state of

mind. Applicant alleges that trial counsel failed to object to the prosecutor’s closing argument,

which mis-stated the law of self-defense, injected inadmissible evidence of Applicant’s prior

criminal history, and mis-stated the evidence at trial by stating that Applicant was under the

influence of a controlled substance at the time of the offense.

        Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington,

466 U.S. 668 (1984). Accordingly, the record should be developed. The trial court is the appropriate

forum for findings of fact. TEX . CODE CRIM . PROC. art. 11.07, § 3(d). The trial court shall order trial

counsel to respond to Applicant’s claims. In developing the record, the trial court may use any

means set out in Article 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 wants to be represented by counsel, the

trial court shall appoint counsel to represent him at the hearing. See TEX . CODE CRIM . PROC. art.

26.04. If counsel is appointed or retained, the trial court shall immediately notify this Court of

counsel’s name.

        The trial court shall make findings of fact and conclusions of law as to whether trial counsel’s

performance was deficient and Applicant was prejudiced. The trial court may make any other

findings and conclusions that it deems appropriate in response to Applicant’s claims.

        The trial court shall make findings of fact and conclusions of law within ninety days from

the date of this order. The district clerk shall then immediately forward to this Court the trial court’s

findings and conclusions and the record developed on remand, including, among other things,

affidavits, motions, objections, proposed findings and conclusions, orders, and transcripts from

hearings and depositions. See TEX . R. APP . P. 73.4(b)(4). Any extensions of time must be requested
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by the trial court and obtained from this Court.



Filed: March 11, 2020
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