## I N T H E C O U R T O F C R I M I N A L A P P E A L S O F T E X A S NO. WR-89,480-01

EX P ARTE LAWRENCE ANTHONY KOSS, App licant

ON AP P LICATION FOR A WRIT OF HABEAS CORP US CAUSE NO. W-1341780-S (A) IN THE 195T H DISTRICT COURT

F ROM DALLAS COUNTY

Per curiam . O R D E R Pursuant to the provisi o n s o f Ar t icle 11.07 of the Texas Code of Criminal Procedur e, the cler k of the trial court transmitted to this Court this application for a writ of habea s corpus. Ex parte Y oung , 418 S.W .2d 824, 826 (Tex. Crim. App. 1967)

. Applicant enter ed an open plea of g uilty to the offe nse of injury

to a child, and wa s sentence d to imprisonment for forty y ear s. On Februa

ry 13, 20 1 9 , t h i s C o u rt rema nded thi s matter to the t rial court for affidavits and finding s reg arding Applicant’s claim that he rec ei v ed ineffe ctive assistance of trial counsel. Applicant alleg es that his trial counsel was ineffe ctive for failing to object or reque st a continuance when the State introduced a Communi ty Supervision and Correc tions Depa rtment Comprehensive Assessment and Trea

tment Service s Report (a “CATS” repor t) that it rec eived on the second day ofthe punishment hear ing. The CATS repor t, prepa red by a licensed profe ssional counselor who had interviewe d Applicant, appar ently contained some favor able i n formation reg arding Applicant’s likelihood of comply ing with terms of community supervision and his low ris k o f re- offe nding. Howeve r, the repor

t also appar ently contained information reg arding “a pattern of anim al crue lty from chi l d h o o d t o the prese nt” and a repor t by Applicant that he “thoug ht about knocking some box es over in the shipping depar tment to kill a man who had been sexually hara ssing a friend.” I n addition, the repor

t indicated that Applicant repor ted having been trea

ted by a psy cholog ist for many y ear s an d h aving been diag nosed with Attention Def icit Hy pera ctivity Disorder

. The licensed profe ssional counsel appar ently stated her opinion that Applicant’s behavior was more consistent with a diag nosis of Conduct Disorder “that ripene d into antisocial persona lity disorder in adulthood” than with a diag nosis of Attention Deficit Hy pera ctivity

Disorder

. Applicant alleg es that trial counsel s hould have objected and moved for a continuance so that the information contained in the CATS repor t could be investiga ted. I n addition, Applicant alleg es t hat t he defense could have broug ht the l icense d profe ssional counselor into court and question ed her r eg arding her qualifications to make the statements reg arding Applicant’s possibl e diag nosis. Applicant also alleg es that trial counsel was ineffe ctive for failing to prese nt evidenc e of his mental health history and diag nosis at the punishment hear ing. Even if Applicant did not tell trial counsel about his mental health history befor e the punishment hear ing, the information cont ai n ed in the CATS repor

t should have put trial counsel on notice that there might be issues reg arding Applicant’s mental hea lth hist ory . On rema nd, Applicant’s trial counsel submitt ed an aff idavit in which he stated only that his usual prac tice is to “investig ate any issues” and to defe nd his client “ac cording to his or her decisions

on how to proce ed in his or her particula r case .” Trial counsel stated that he has no rea son to believethat he deviated from h i s u s u al p ractice in this case . Trial counsel’s aff idavit does not respond specific ally

to any of Applica

nt’s alleg ations. The trial c ourt has ente red f indings of f

act a nd conclusions of law , descr ibing a number of possible strateg ic rea sons why trial counsel may not have objected to the introduction of the CATS repor t, a nd why he may not ha

ve wanted to c all the licensed profe ssional counselor to te stify

. The trial court’s finding s with reg ard to trial counsel’s possible rationale s are not supported by the rec ord. Applicant has alleg ed fac ts that, if true, might entitle to relief

. Strickland v. W

ashington , 466 U.S. 668 (1984); Ex parte Patterson , 993 S.W .2d 114, 115 (Tex. Crim

. Ap p . 1 9 99). I n these circ umstances, additional fac ts are neede d. As we held in Ex parte Rodriguez , 334 S.W .2d 294, 294 (Tex. Crim. App. 1960), the trial court is the appropr iate forum for finding s of fac t. The trial court shall order trial counsel to respond more specific ally to Applicant’s claims of ineffe ctive assistance of counsel. Trial counsel shall state whether he was awa re of Applicant’s mental health history and d ia g n osis, and if so, whether he considere d introducing evidenc e of Applicant’s mental h e a lt h h is to r y in mitigation of punishment. Trial counsel shall state when the CATS repor t was first produce d by the S tate, and whether trial counsel had an o p p o rtunity to revie w t he report wit h Applicant. Trial counsel shal l s t ate whether he believed that the CATS repor t contained information that was favor able or unfavor able to the defe nse, or both. Trial counsel shall state why he did not r equest a continuance in order to investig ate the c ontents of the CATS repor t and in order to investiga te the qualifica tions of the author of the repor t. The trial cour

t may use any means set out in T E X . C O D E C R I M . P R O C . art. 11.07, § 3(d)

. I f t he trial court elects t o h o l d a hearing , it shall deter mine whether Applicant is indige nt. I f Applicant is indige nt and wishes to be repr esente d by counsel, the trial co u rt s hall appoint an attorney to repre sent Applicant a t the hear ing. T E X . C O D E C R I M . P R O C . art. 26.04.The trial court shall first supplement the habea s rec ord with a copy of the CATS repor t and

a transcr ipt of the punishment proce eding s in this case. The tr ial court shall make finding s of fa ct and conclusions of law as to whether the perf ormanc e of Applicant’s trial counsel was defic ient and, if so, whether counsel’s defic ient perf ormanc e prejudice d Applicant. The trial court shall also make any other finding s of fac t and conclusions of law that i t d ee m s relevant and appropr iate to the dispositi on of Applica

nt’s claim for ha

beas c orpus re lief. This application will be held in abey ance until the trial court has resolved the fac t issues. The issues shall be resolved within 90 day s of this order

. A supplement al t ra n s cr i pt containing all aff idavits and int err og atories or the t ransc ription of t he court repor ter’s notes from any hear ing or deposition, along with the trial court’ s supplemental finding s of fa ct and c onclusions of law, shall be for war ded to this Court withi n 120 day s of t he date of this order. A ny extensions of ti me must be re quested by

the trial cour

t and shall be obtaine d from this Court.

Filed: Jul y

3, 2019 Do not publish