                IN THE COURT OF CRIMINAL APPEALS
                            OF TEXAS
                                         NO. WR-86,560-01


                    EX PARTE LAWRENCE DEMETRIUS SMITH, Applicant


                    ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                   CAUSE NO. 08-0306X(A) IN THE 71ST DISTRICT COURT
                               FROM HARRISON COUNTY


        Per curiam. ALCALA , J., filed a concurring opinion.

                                              ORDER

        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 murder and

sentenced to sixty years’ imprisonment. The Sixth Court of Appeals affirmed his conviction. Smith

v. State, No. 06-09-00140-CR (Tex. App. — Texarkana, Jan. 11, 2010) (not designated for

publication).

        Applicant contends, among other things,1 that the State withheld favorable evidence from the



        1
            This Court has considered Applicant’s other claims and finds them to be without merit.
                                                                                                       2

defense prior to trial by failing to disclose the criminal history of its primary witness, Marietta

Taylor. Applicant alleges that his trial counsel rendered ineffective assistance because trial counsel

failed to adequately investigate and discover the criminal history of witness Marietta Taylor.

Applicant also alleges that trial counsel failed to object to the introduction of extraneous offense and

bad act evidence and to the prosecutor’s repeated references to those extraneous matters during

closing arguments, and failed to request limiting instructions regarding extraneous offenses and bad

acts in the jury charge. Applicant alleges that trial counsel failed to recall State’s witness Adrian

Ward for cross-examination when Ward was removed from the courtroom immediately after his

direct testimony without providing an opportunity for cross-examination.

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

466 U.S. 668 (1984); Ex parte Patterson, 993 S.W.2d 114, 115 (Tex. Crim. App. 1999). 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 order trial counsel to respond to 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 and conclusions of law as to whether the State

timely provided the defense with the criminal history of its witness Marietta Taylor. If the State did

not disclose such evidence, the trial court shall make findings of fact and conclusions of law as to
                                                                                                      3

whether the evidence was material and favorable to the defense. The trial court shall also make

findings of fact and conclusions of law as to whether the performance of Applicant’s trial counsel

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. 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 forwarded to this Court within 120 days of the date of this order. Any extensions of time must

be requested by the trial court and shall be obtained from this Court.



Filed: April 12, 2017
Do not publish
