## IN THE COURT O F CRIMINA L A PPEA LS OF TEXA S NO. WR-82,616-01

EX P ARTE CRYSTAL YVONNE MITCHELL , Appli cant

ON AP P LICATION FOR A WRIT OF HABEAS CORP US CAUSE NO. 728779-A IN THE 339th DIST RICT COURT

F ROM HARRIS COUNTY

Per curiam . O R D E R Pursuant to the provisions of Ar t i cl e 1 1

. 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 was convicted of possession of a controlled substance with intent to deliver and sentenc ed to eig hteen year s’ imprisonment. She did not appea l her c onviction. Applicant contends that her trial counsel rende red ineffe ctive assistance beca use he coer ced her into enter ing a plea of guilty and he failed to call a witness who would have provided exculpatory evidenc e in this case . In response to Applicant’s claims of ineffe ctive assistance , t h e trial court2

enter ed a detailed order designating issues (ODI ) order ing a response from counsel. The ODI was signe d on September 26, 2006. Approxim ately eig ht y ear s later, the trial court has now enter ed findi n gs o f fa ct and conclusions of law rec ommending that relief be dismiss ed beca use the Applicant is “not i ncar cer ated in the primary case .” Howe ver, the trial court’ s conclusions of law

are in err or. Acc ording to the h ab ea s re co rd, the trial court has based its rec ommendation on an aff idavit that states the Applicant is curr ently on rele ase to parole in this cause . Howeve r, release to parole is still a restra int in li berty and this application is proper ly befor e this Court. 1 Applicant has alleg ed fac ts that, if true, might entitle her 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. The trial court shall orde r t ri al counsel to respond to Applicant’s claim of i neff ective 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. 11.07, § 3(d)

. I f t he trial court el ec t s to hold a hearing , it shall deter mine whether Applicant is indige nt. I f Applicant is i n d i gent 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. T h e t rial court shall make finding s of fac t and conclusions of law as to whether t h e perf ormanc e of Applicant’s trial counsel was defic ient and, if so, whether co u n sel’s defic ient perf ormanc e prejudice d Applicant. The trial court shall also make any other finding s of fac t and

T E X . C O D E C R I M . P R O C . art. 11.22, whic h define s the term re straint, states: 1 By

“re straint” is meant the kind of c ontrol which one pe rson exercises over a nother, not to confine him within certain limits, butto subject him to the g ener al authority

and powe r of the pe rson claimingsuch rig ht.3

conclusions of law that it deems rele vant and appropr iate to the dispositi on of Applicant’s claim for habea s corpus re lief. This application will be held in abeyance until the trial court has resolved the fac t issues. Given the alre ady leng thy delay in this case , the issues shall be resolved within 60 day s of this order

. A supplemental transcr ipt containing all a f f id a v it s a n d in te r r o g atories or the transcr iption of the court repor ter’s note s from any

hear ing or

deposition, alongwith the trial court’ s supplemental finding s of fac t and conclusions of law, shall be forwa rded to this C o u rt wi thin 90 day s of the date of this order . Any

extensions of ti me shall be obtaine d from this Court.

Filed: F ebrua

ry 4, 2015 Do not publish