## 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-73,419-03 AND WR-73,419-04

EX P ARTE CHARLES S TEWART WALKER, Appli cant

ON AP P LICATIONS FOR WRITS OF HABEAS CORP US CAUSE NO. 636861-A AND 636861-B IN THE 174T H DISTRICT COURT F ROM HARRIS COUNTY

Per curiam . Y E A R Y , J., fi led a concurring opin ion in wh ich S L A U G H T E R , J., joined. N E W E L L , J., concurre d. O R D E R Applicant was convicted of ag g rava ted sexual assault and sentenc ed to fi ft y y ea rs’ imprisonment. The First Court of Appea ls aff irmed his conviction. W alker v State , No. 01-93- 00163-CR (Tex. App. - Houston [1 Dist.] November 18, 1993) (not desig nated f or publ ication). st Applicant filed these appl i ca t i o n s fo r writs of habea s corpus in the county of conviction, and the district clerk f

orwa rded the m to this Court . See T E X
. C O D E C R I M
. P R O C
. art. 11.07. These essentially identical applications wer e file-stampe d in Har ris County on J uly 24, 2008 (in the case of the -0 3 application) and April 8, 2010 (in the case of the -04 application). Orde rs desig nating issues wer e signe d by the trial judge on Aug ust 14, 2008, and April 26, 2010,2

respe ctively

. These applications wer e not rec eived by this Court until September 9, 2022. There is

no indication in the record of an y ac t ion by the t rial court afte r t he orders designating issues wer e signe d. Nor is there any indication as to why these applications wer e pending in Har ris County for so long w ithout any

action by the cler k or the trial c ourt. Applicant contends, among other things, that trial counsel was ineffe ctive beca use he failed to inve stiga te, failed to se ek DNA, fing erpr int, or other testing of evidenc e, failed to c ommunicate with Applicant or his family members prior to trial, and failed to interview or call witness Tamu R. Texas, despite having been aler ted to her exis tence by Applicant. Applicant has alleg ed fac ts that, if true, might entitle him to relief

. Strickland v. W

ashington , 466 U.S. 668 (1984). Acc ording ly , the

rec ord should be develope d. The trial court is the appropr iate forum for finding s of fac t. T E X
. C O D E C R I M
. P R O C
. art. 11.07, § 3(d). The trial court signe d an order desig nating issues in the -03 case on Aug ust 14, 2008, and in the -04 case on April 22, 2010. Both order s require d trial counsel to submit

an aff idavit responding to Applicant’s alleg ations within thirty day s. Howeve r, there is no indication that trial counsel ever responde d by submitt ing an aff idavit as require d by the trial court’s order s. As a pre liminary

matter, the tria l c ourt shall make finding s of fa ct as to why no action wa s taken by the trial court or the cler k betwee n the entry of th e o rd er s desig nating issues and the forwa rding of the applications to this Court a pproxi mately twelve y ear s later. The trial court shall obtain a response from Applicant as to whether Applicant still wants to pur sue these applications, and shall include that response in the supplemental rec ord. I f the trial court is unable to obtain a
response from Applicant as to whether he wants to pursue the applications, the trial court shall detail the eff orts that wer e made to obtain a response from Applicant. The trial court shall then return the applications to this Court.3

I f Applicant indicates that he does want t o p u rs u e t hese applications, the trial court shall order trial counsel to respond to Applicant’s clai ms. I n developing the record, the trial court may

use any means set out in Article 11.07, § 3(d). I f t h e trial court elec ts to hold a hear ing, it shall deter mine whether Applicant is indige nt. I f Applicant is indige nt and wants to be repres en ted by counsel, the trial court shall appoint counsel to repr esent him at the hear ing. See T E X
. C O D E C R I M
. P R O C
. art. 26.04. I f counsel is appointed or reta ined, the trial co u rt s h al l i mmediately notify this Court of counsel’ s name. The trial court shall make finding s of fac t and conclusions of law as to whether trial counsel’s perf ormanc e was defic ient and Appl i ca n t wa s p rejudice d. The trial court may make any other finding s and conc lusions that it deems a ppropriate in response to Applica nt’s claims. The t ri al court shall make findings of fac t and conclusions of l aw within ninety day s from the date of this order

. The district cler k shall then immediately forwa rd to this Court the trial court’s finding s and conclusions and the rec ord develope d on rema nd, including, among other things, aff idavits, motions, objections, proposed finding s and conclusions, o rders, and transcr ipts from hear ings and depositions. See T E X
. R. A P P
. P. 73.4(b)( 4). Any extensions of time must be reque sted by the trial cour

t and obtained f

rom this Court.

Filed: De cembe r 7, 2022 Do not publish