## 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 NO. WR-87,755-01

EX P ARTE DAVID RA Y BRATCHER, Appl icant

ON AP P LICATION FOR A WRIT OF HABEAS CORP US CAUSE NO. 17-11167-W1 IN THE 278TH DIS TRICT COURT

F ROM MA DISON COUNTY

Per curiam . O R D E R Pursuant to the provisi o n s o f Ar t icle 11.07 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 (Te x . C ri m . App. 1967). Applicant was convicted of ag g ravated robber y and sentenc ed to forty y ear s’ imprisonment. The Tenth Court of Appea ls aff irmed his conviction. Bratcher v . State , No. 10-08-00107- CR (Tex. App.—W aco D ec. 9, 2009)

. Applicant states that appellate counsel repr es en t ed him reg arding his petition for discretionar

y revie w. Applicant contends that appellate counsel rende red ineffe ctive ass i s t an ce beca use counsel never told him that the petition for discretionar y revie w was dismiss ed as untimely filed and that counsel depr ived him of his rig ht to seek discre tionary revie w. See E

x part e W ilson ,2

956 S.W .2d 25, 26-27 (Te x . Crim. App. 1997). . Applicant has alleg ed fac ts that, if true, might entitle him to relief

. Strickland v. W

ashington , 466 U.S. 668 (1984). I n these circumstance s, ad d itional 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 order appellate counsel to respond to App l i ca n t ’s claim of ineffe ctive assistance of counsel on appea l. 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 the trial court elec ts to hold a hear ing, it shall dete rmine whe ther Applica nt is indi g ent. I f Applicant is indige nt and wishes to be repr esente d by counsel, the t ri al 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 conclusions of law as to whether Applicant’s appellate counsel deprive d Applicant of the opportunity to seek discretionar y revie w. The trial court shall also make finding s reg arding lache s. Ex Parte Perez , 398 S.W .3d 206, 215 (Tex. Crim. App. 2013).The trial court may also make any other finding s of fac t and conclusions of law that it deems rele vant and a

ppropriate to the dispositi on of Applica nt’s claim for ha

beas c orpus re lief. This application will be held in abey ance until the trial court has resolved the fac t issues. The issues sh al l b e re s o l ved 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 hear ing 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 this Court withi n 120 day s of the date of t his order

. Any extensions of ti me must be re quested by

the trial cour

t and shall be obtaine d from this Court.3

Filed: De cembe r 20, 2017 Do not publish