              IN THE COURT OF CRIMINAL APPEALS
                          OF TEXAS
                                         NO. WR-75,864-03


              EX PARTE BARTHOLOMEW ANTONIO GUZMAN, Applicant


                 ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                 CAUSE NO. 1053411-A IN THE 262ND DISTRICT COURT
                              FROM HARRIS COUNTY


        Per curiam. ALCALA , J., not participating.


                                              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 injury to a child

and sentenced to ninety years’ imprisonment. The First Court of Appeals affirmed his conviction.

Guzman v. State, No. 01-06-00946-CR (Tex. App.—Houston [1st Dist.] 2008, pet. ref’d).

        Applicant contends, among other things, that trial counsel rendered ineffective assistance

because he failed to investigate whether the complainant’s injuries were caused by a fall in a bathtub.

In support of his claim, Applicant attached a sworn affidavit from John Plunkett, M.D. On
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September 9, 2013, we remanded this application and directed the trial court to determine whether

Plunkett’s affidavit was credible, counsel’s conduct was deficient, and Applicant was prejudiced.

On remand, the trial court found that Plunkett’s affidavit was not credible and held no evidentiary

value. It also concluded that counsel’s decision not to investigate whether the complainant’s injuries

were caused by the fall in the bathtub was not deficient. It recommended that we deny relief.

        We believe that the record is not adequate to resolve Applicant’s claim. Applicant has

alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 668 (1984);

Ex parte Briggs, 187 S.W.3d 458 (Tex. Crim. App. 2005). 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 may use any means set out

in TEX . CODE CRIM . PROC. art. 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 wishes to be represented by counsel, the trial court shall appoint an

attorney to represent him at the hearing. TEX . CODE CRIM . PROC. art. 26.04.

        The trial court shall make further findings of fact and conclusions of law on the level and

scope of Plunkett’s expertise. See Ex parte Henderson, 384 S.W.3d 833, 834 (Tex. Crim. App.

2012). The trial court shall also make further findings and conclusions, with supporting evidence

or testimony, on whether Plunkett’s opinion, as stated in his affidavit, would have been admissible

as expert testimony when Applicant was tried in 2006. See Kelly v. State, 824 S.W.2d 568 (Tex.

Crim. App. 1992). Finally, if the trial court concludes that this testimony would have been

admissible in 2006, it shall make further findings and conclusions on whether counsel’s conduct was

deficient and Applicant was prejudiced. The trial court shall also make any other findings and
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conclusions 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 shall

be obtained from this Court.



Filed: September 17, 2014
Do not publish
