Heidelberg, Ex Parte Donald C.

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. AP-75,263 EX PARTE DONALD C. HEIDELBERG, Applicant ON APPLICATION FOR A WRIT OF HABEAS CORPUS FROM CAUSE NO. 804016-A IN THE 228 TH JUDICIAL DISTRICT COURT OF HARRIS COUNTY Per Curiam. O R D E R After a jury trial, the applicant was convicted of aggravated sexual assault and sentenced to twenty-five years in prison. On appeal, the applicant argued that his conviction should have been reversed because the prosecutor invited the jury to consider the applicant's post-arrest silence against him during testimony and in her final summation, in violation of our state constitutional privilege against self-incrimination. (1) In a published opinion, the Houston First Court of Appeals held that the applicant had failed to preserve the state constitutional issue, having only invoked the Fifth Amendment to the United States Constitution in his trial objection. (2) This Court affirmed the judgment of the court of appeals in a published opinion on the applicant's petition for discretionary review. (3) In his post-conviction application for writ of habeas corpus brought pursuant to Article 11.07 of the Texas Code of Criminal Procedure, (4) the applicant now argues that his trial counsel provided ineffective assistance of counsel under the Sixth Amendment to the United States Constitution in failing to invoke our state constitutional provision in his trial objection to the prosecutor's invitation to the jury to consider his post-arrest silence. (5) He presents an affidavit from trial counsel in which she acknowledges that her pre-trial research had been inadequate to inform her that a state constitutional objection could have been made, and that her failure to do so was not a matter of trial strategy. During the State's cross-examination of the applicant, the prosecutor made several references to the fact that the applicant never attempted to contact the investigating officer, James Fitzgerald, a detective in the Harris County Sheriff's office, "to talk to [him] about this case." Because the record as it comes to us is not clear as to exactly when the applicant was arrested, many of these questions, though certainly seeming to relate to post-arrest silence, are nevertheless ambiguous. For example: Q. Did you ever ask to talk to the detective about this case once you knew that the charges were there? A. I didn't know about any charges until July of this year. Q. And in July of this year did you ask to talk to the detective on the case? A. Well, I was already incarcerated. So - Q. Well, did you ever ask anyone - [Defense Counsel]: Objection, Your Honor. This goes to the Fifth Amendment. THE COURT: Overruled. Answer the question. A. Did I ask to talk to a detective? Q. ([Prosecutor]) Yes, Sir. A. No. Q. Because you certainly - you certainly could have talked with the detective about all these horrible things that [the complainant] has gone through that have led her to lie - let me finish my question. A. Sorry. Q. You certainly could have talked with the investigating officer in this case and explained to him, in your opinion, why [the complainant] made this up; right? [Defense Counsel]: Objection, Your Honor. My client - all of this line of questioning goes to the Fifth Amendment. My client does not have to speak to anyone about it. THE COURT: Be overruled. A. Could you ask the question again, please. Q. ([Prosecutor]) You could have talked with the investigating officer once you knew about the charges and explained to him how this was a false allegation and why it was a false allegation? A. Well, when I knew about it, I didn't know that I had to talk to any detective or anything about it. I did request to see an attorney so I could tell them about it, to tell someone. When I got arrested I told whoever the detectives I talked to about it. Q. Did you ever make any attempt to talk to the detective on this case to tell him your side? [Defense Counsel]: Objection, Your Honor. This is asked and answered. ([Prosecutor]): I don't think he's answered it yet, Judge, or I wouldn't keep asking. THE COURT: Be overruled. Answer the question. A. When I was incarcerated, I did. Q. ([Prosecutor]) You did? A. Yes. Q. Who did you talk to about it, which detective? A. When I was going through - well, I don't know if they were a detective or not, but whoever was telling me about it and they were asking me about it, I was telling them. So I guess they were the ones who was in charge or I don't know. Q. Did you ever say, "I want to talk to the detective that handled this case?" A. No, I did not. In resolving the applicant's claim of ineffective counsel, it is important to know exactly when the applicant was arrested. We therefore remand the cause to the convicting court with instructions to conduct further fact-finding proceedings under Article 11.07, Section 3 (d) of the Texas Code of Criminal Procedure, (6) to resolve the question exactly when the applicant was arrested for the offense. The convicting court shall supplement the habeas record with copies of any and all documents upon which its findings are based, and the transcript of any hearing which it may conduct. This application will be held in abeyance until the convicting court has resolved this fact issue. The issue shall be resolved within sixty (60) days of this order. A supplemental transcript, along with the convicting court's supplemental findings of fact and conclusions of law, shall be returned to this Court within ninety (90) days of the date of this order. Any extensions of time shall be obtained from this Court. It is so ordered. Filed: June 28, 2006 Do Not Publish 1. Tex. Const. art. I, § 10. 2. Heidelberg v. State, 112 S.W.3d 658 (Tex. App. - Houston [1st] 2003). 3. Heidelberg v. State, 144 S.W.3d 535 (Tex. Crim. App. 2004). 4. Tex. Code Crim. Proc. art. 11.07. 5. Tex. Const. art. I, § 10. 6. "To resolve those issues the court may order affidavits, depositions, interrogatories, and hearings, as well as using personal recollection."