IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-83,181-02

EX PARTE EDDIE JOE DELK, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. W94-39758-I (B) IN THE CRIMINAL DISTRICT COURT NUMBER TWO

FROM DALLAS COUNTY

Per curiam.

O R D E R

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 capital murder

and sentenced to life years’ imprisonment. The Fifth Court of Appeals affirmed his conviction. Delk

v. State, No. 05-96-00731-CR (Tex. App.—Dallas July 21, 1998) (not designated for publication).

Applicant contends that his trial counsel rendered ineffective assistance because he did not

advise him that a conviction in this case carried an automatic life sentence. Applicant further

contends that, had he been advised of this consequence, he would have accepted a twenty-five year

plea offer from the State and not proceeded to trial. The trial court recommends relief be denied
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under laches. However, the State responds, in pertinent part:

It is the State’s position that Applicant has failed to prove that defense

counsel rendered ineffective assistance under Strickland. Beyond the self-serving

allegations in his application, Applicant presents no proof in support of his

contentions. The State recognizes, however, that further evidence regarding defense

counsel’s representation may be needed. To that end, the State requests that this

Court gather evidence by requesting an affidavit from Applicant’s attorney, Mr.

George Ashford, III, which provide the information needed to dispose of Applicant’s

claims. Pending production of evidence supporting Applicant’s allegations, the State

denies Applicant’s allegations. 

While we agree with the trial court that laches may be applicable to this case, we also agree

with the State that, at this time, a response from counsel is necessary to the resolution of the issue

in this case.

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). In the

appropriate case, the trial court may rely on its personal recollection. Id.

The record reflects that Applicant is represented by counsel. However, if this is no longer

the case, and 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
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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: December 7, 2016

Do not publish