Ex parte Moulton

EX PARTE DAVID LEN MOULTON, Applicant

NO. WR-81,718-01

COURT OF CRIMINAL APPEALS OF TEXAS

December 17, 2014

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 2008F00339-A IN THE 5TH DISTRICT COURT FROM CASS 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 murder and sentenced to sixty years' imprisonment. The Sixth Court of Appeals reversed the judgment of conviction. Moulton v. State, 360 S.W.3d 540 (Tex. App.—Texarkana 2011). We reversed the judgment of the court of appeals. Moulton v. State, 395 S.W.3d 804 (Tex. Crim. App. 2013).

Applicant now contends, among other things, that trial counsel failed to object on Confrontation Clause grounds when affidavits the medical examiner relied on were read to the jury, request a limiting instruction after the affidavits were read to the jury, and request a continuance afterthe State disclosed the affidavits during trial. The trial court made findings of fact and conclusions of law and recommended that we deny relief. We believe that the record is no adequate to resolve Applicant's claims.

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 the above claims. The trial court may use any means set out in TEX. CODE CRIM. PROC. art. 11.07, § 3(d).

Applicant appears to be represented by counsel. If he is not and 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.

After reviewing counsel's response, the trial court shall determine whether counsel's conduct was deficient and Applicant was prejudiced. 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...