## 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-WR- 88,180-02

EX P ARTE WALTE R HINTON, JR., Appli cant

ON AP P LICATION FOR A WRIT OF HABEAS CORP US CAUSE NO. 1316867-A IN THE 262ND DISTRICT COURT

F ROM HARRIS 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 (Tex. Crim. App. 1967). Applicant wa s co n v i cted of murder and sentenc ed to life imprisonment. The Four teenth Court of Appea ls aff irmed his conviction. Hinton v. Stat e , No. 14-13-00116-CR (Tex. App. — Houston [14 Dist.] April 17, 2014) (not desig nated t h for publica tion). Applicant contends, among other things, that both his trial counsel and his appellate counsel 1

This Court has review ed Applica nt’s other c laims and finds them to be without merit. 12

rende red ineffe ctive assistance for various rea sons. Applicant alleg es that trial counsel was ineffe ctive for failing to seek out, interview and prese nt testimony from two witnesses, one of whom intervene d during an ear lier confr ontation betwee n Applicant and the victim, and the other, the victim’s son who was appar ently firing a 9mm g un at the scene of the offe nse. Applicant also alleg es that tr i al counsel failed to reque st a concur rent causa tion instruction or lesser- included offe nse instructions in the jury char g e. As for ap p el l at e co u nsel, Applicant alleg es that he failed to file a motion for new trial to prese rve various issues for direc t ap p ea l

. Applicant alleg es that althoug h appellate counsel was appoint e d the day afte r Applicant was sentenc ed, he did not communicate with Applicant at a ll until afte r the de adline for filing a motion for new tria l had passed. 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). I n 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 order trial coun s el an d appellate counsel to respond to Applicant’s claims of ineffe ctive assistance of counsel. The trial court may use any means set out i n T E X . C O D E C R I M . P R O C . art. 11.07, § 3(d). I n the appr opriate c ase, the trial court may rely on its personal re collection. Id

. I f the trial court elec ts to hold a hea ring , it shall determine whe ther Applica nt is indi g ent. I f Applicant is indige nt and wishes t o b e represente d by counsel, the trial court shall appoint an attorney to repre sent Applicant a t 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 findin gs o f fact and conclusions of law as to whether the perf ormanc e of A

pplicant’s trial c ounsel was deficient a nd, if so, whether

trial counsel’ s deficie nt perf ormanc e prejudice d Applicant. The trial court shall also make finding s of fac t and conclusions3

o f law as to whether the perf ormanc e of Applicant’s appellate counsel was defic ient, and i f s o , whether appellate counsel’s defic ient perf ormanc e prejudice d Applicant. The trial court shall also make any 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 claims 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 issue s s h al l b e resolved 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 forwar ded to t his Court withi n 120 day s of the date of this order. A ny extensions of ti me m ust be re quested by

the trial cour

t and shall be obtaine d from this Court.

Filed: June 27, 2018 Do not publish