Ex parte Sonnenberg

Per curiam.

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 one count of aggravated assault and one count of assault strangulation enhanced and sentenced to sixteen and twenty years' imprisonment, respectively. The Third Court of Appeals affirmed his conviction. Sonnenberg v. State, No. 03-14-00530-CR (Tex. App.—Austin June 16, 2016)(not designated for publication).

Applicant contends, among other things, that his trial counsel rendered ineffective assistance because he refused to allow Applicant to testify, thereby precluding the use of self-defense; failed to impeach the complainant with medical records indicating she broke her arm from a fall down the stairs the day prior to the assault; failed to subpoena Dr. John E. McDonald to testify concerning complainant's left arm injury that was sustained from falling down stairs on October 28, 2012; and, failed during the punishment phase, to call witnesses who could have challenged the veracity of the punishment witnesses' testimony regarding alleged prior assaults committed by Applicant against the complainant and a former girlfriend. Applicant also alleges that counsel created a conflict of interest by repeatedly cursing at and threatening Applicant that if he did not pay him the agreed fee, that counsel "would promise him he [Applicant] would go to prison." Applicant alleges that counsel would not meet with Applicant, would not discuss his case, and screamed at Applicant when Applicant attempted to discuss his defense with counsel.

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 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).

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 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: September 13, 2017
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