## 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-89,540-01

EX P ARTE COLLI N SMITH, App licant

ON AP P LICATION FOR A WRIT OF HABEAS CORP US CAUSE NO. D-1-D C-05-500237- A IN THE 390TH DISTRICT COURT

F ROM TRAVIS 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 f

ifty -two y ear s’ imprisonment. The Third Court of Appea ls a ffirme d his c onviction. Smith v

. State , No. 03-07-00094- CR (Tex. App. — Austin, 2008) (not desig nated for publication). Applicant contends, among other things, that h is tria l c o u n s e l r e n d e red ineffe ctive assistance 1 beca use trial counsel failed to object to various improper statements made by the prosec utor during

This Court has considere d Applicant’s other claims and finds them to be w ithout merit. 12

closing arguments, failed to cha lleng e a ve nire membe r who ha d a hea ring impairment, and fa iled to object when the trial judg e par ticipated in the plea

neg otiations. 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. The trial court shall order trial counsel to r espond to A pplicant’s claims 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. 11.07, § 3(d). In the appropr iate ca se, the trial c ourt may rely on its personal re collection. Id

. I f the trial court e lects to hold a hea ring , it shall determine whe ther Applica nt is indi g ent. I f Applicant is indige nt and wishes to be repr esente d b y 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 conclusions o f l aw as to whether the perf ormanc e of Applicant’s trial counsel was defic ient and, if so, whe t h er 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 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. The i s s u es s h al l be 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 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 this Court withi n 120 day s of t he date of this order. A ny extensions of ti me must3

be re quested by

the trial cour

t and shall be obtaine d from this Court.

Filed: Mar ch 6, 2019 Do not publish