## 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 NOS. WR-82,096-01, WR- 82,096-02 & WR- 82,096-03

EX P ARTE KENTRAIL RAY M CCUIN, A ppl icant
ON AP P LICATIONS FOR WRITS OF HABEAS CORP US CAUSE NOS. F- 12-51308-L, F -12-51309- L & F -12-51310- L IN THE CRIMINAL DISTRICT COURT NO. 5

F ROM DALLAS COUNTY
Per curiam . O R D E R Pursuant to the provisions of Article 11.07 of the Tex as C o d e o f Criminal Procedur e, the cl er k o f the trial court transmitted to this Court these applications for writs of habea s corp u s . E x parte Y oung , 418 S.W .2d 824, 826 (Tex. Crim. App. 1967). Applicant w as co nvicted of evading
arr est, possession of a firea rm by a felon, and unlawful possession with intent to deliver coca ine in
a drug fre e school zone. He was sentenc ed to two, five, and twenty y ear s’ imprisonment, respe ctively
. The Fifth Court of Appeals aff irmed hi s convictions. McCuin v. State , Nos. 05-12- 01148-CR, 05-12-01149- CR & 05-12-01150- CR (Tex. App. Dallas—Jul. 26, 2013) (not desig nated for publication).2

Applicant contends, among other things, that his trial counsel rende red ineffe ctive assistance beca use he did not object to an improper cumulation order
. Applicant’s evading arr est sentenc e was order ed to run consecutive to the pos session of a firea rm by a felon sentenc e. The possession of a firea rm sentenc e was order ed to run consec utive to the possession with intent to deliver a controlled substance in a school zone sentenc e. T E X . P E N A L C O D E § 3.03; T E X . H E A L T H & S A F E T Y C O D E § 481.134(h). Applicant has alleg ed fac ts that, if true, might entitle him to relief
. Strickland v. W

ashington , 466 U.S. 668 (1984); Ex parte Patterson , 993 S.W .2d 114, 115 (Tex. Crim. App. 1999); In 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. Thoug h counsel provided an aff

idavit responding to the claims, it does not addre ss Applicant’s claim that there was
no objection to t h e cu m u l ati on order
. The trial court shall order trial counsel to respond to Applicant’s claim of ineffe ctive assistance of counsel. The trial court may use any means set out in T E X . C O D E C R I M . P R O C . art. 1 1
. 0 7 , § 3 (d). In the appropr iate case , the trial court may rely on its persona l rec ollection. Id
. I f the trial c ourt elec ts to hold a hear ing, it shall dete rmine whe ther Applica nt is indi g ent. I f Appl icant is indige nt and wishes to be repr esente d by counsel, the trial court shall appoint an attorney to repre sent Applicant at 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 make finding s of fac t and co n cl u s i ons of law as to whether the perf ormanc e of Applicant’s trial counsel was defic ient and, if so, whether co u n s el’s defic ient perf ormanc e prejudice d Applicant. The trial court shall make specific finding s addre ssing the leg al basis for the cumulation order in Cause Number F- 12-51308-L
. The trial court shall also make any3

other finding s of fac t and conclusions of law that it deems rele vant 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 abeyance until the trial court has resolved the fac t issues. The issues shall b e re s o l v ed within 90 day s of this order
. A supplemental transcr ipt containing all aff idavits and int err og atories or the t ransc ription of t he court repor ter’s notes from any hearing 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 t his Court within 120 day s of t he date of this order. Any extensions of ti me shall be obtained f

rom this Court.

Filed: Oc tober 29, 2014 Do not publish