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Ex Parte Kenneth Duane Balentine, Applicant

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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 writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). A jury convicted Applicant of murder, and the trial court sentenced him to twenty-five years’ imprisonment. The conviction and sentence were affirmed on direct appeal in an unpublished opinion. Balentine v. State, No. 07-10-00070-CR (Tex. App. — Amarillo del. Apr. 8, 2011). There was no Petition for Discretionary Review.

In this writ application, Applicant, through habeas counsel, raises several claims alleging trial counsel provided ineffective assistance. Applicant argues trial counsel: failed to investigate and adequately advise him regarding the case or to inform him of the evidence in the State’s possession, including photos of the crime scene, preventing him from being able to properly assess the strength of the State’s case and its plea offers; failed to contact the witnesses Applicant told counsel about; failed to timely inform Applicant of a 15-year plea offer for manslaughter; failed to advise Applicant regarding parole eligibility so Applicant could consider the State’s plea offers in the proper context; failed to request a limiting instruction regarding damaging testimony given by Applicant’s son; improperly believed Applicant was eligible for probation if convicted of murder, which prevented Applicant from making informed decisions about his case; and failed to advance a sudden passion argument to the court at punishment. These claims are cognizable on habeas review and are evaluated according to the standards set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984). But without an affidavit from trial counsel responding to Applicant’s assertions and explaining applicable trial strategy, it is difficult to assess Applicant’s claims.

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