## 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-23,032-03

EX P ARTE GREG ORY G ENE MALLORY, Appl icant

ON AP P LICATION FOR A WRIT OF HABEAS CORP US CAUSE NO. 27519 IN THE 6T H DISTRICT COURT

F ROM LAMA R 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 pleade d g uilty to assault of a public

serva nt and was se ntence d to three y ear s’ imprisonment. He did not appea l his conviction. Applic a nt c o nte n d s , a

mo n g o ther things, that his trial counsel rende red ineffe ctive assistance 1 beca use trial counsel did not adequa tely communicate with him, did not prepa re a defe nse, and did not discuss with Applicant the possibili ty of g oing to trial on the char g es. Applicant alleg es that he

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

insisted that he was innocent of the charges an d d i d not have any rec ollection of the events underlying the char g es, but that trial counsel failed to explore the possibili ty of a “not g uilty ” plea, and only discussed with Applicant the option of e nteringinto a neg otiated plea. 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 counsel to respond to Applicant’s claim of i neff ec t i v e 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 elects t o h old a hearing , it shall deter mine whether Applicant is indige nt. 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 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 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: J une 27, 2018 Do not publish