             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                         NO. WR-83,419-02


                      EX PARTE CALLIE ANN MARSHALL, Applicant


            ON APPLICATION FOR A WRIT OF HABEAS CORPUS
    CAUSE NO. W09-00741-J(B) IN THE CRIMINAL DISTRICT COURT NUMBER
                      THREE FROM DALLAS COUNTY


        Per curiam.

                                              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 felony murder

and sentenced to sixty years’ imprisonment. The Fifth Court of Appeals affirmed her conviction.

Marshall v. State, No. 05-09-00902-CR (Tex. App.—Dallas June 22, 2011) (not designated for

publication).

        Applicant contends that her trial counsel rendered ineffective assistance because counsel

retained a psychological expert to testify at the guilt-innocence phase of trial on diminished capacity,

a defense that does not exist in Texas. Applicant further contends that counsel’s lack of
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understanding of the defenses available to Applicant caused the development of a trial strategy that

was constitutionally ineffective . No findings of fact and conclusions of law have been entered by

the trial court regarding Applicant’s claim for relief. However, the State responds to Applicant’s

claim, in pertinent part:

               The State believes that further factual investigation is necessary to determine
       the merit, if any, to applicant’s instant habeas allegations of ineffective assistance of
       counsel. To that end, the State requests that this Court issue an order designating
       issues and gather evidence, as is customary, by way of affidavit from defense counsel
       Pia Rodriguez. Pending production of evidence substantiating applicant’s claim, the
       State denies applicant’s allegations.

       Applicant has alleged facts that, if true, might entitle her 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 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 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
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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: December 12, 2018

Do not publish
