## 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-93,807-01 & WR -93,807-02

EX P ARTE ELMO DWAYNE F LOWERS , Appli cant

ON AP P LICATIONS FOR WRITS OF HABEAS CORP US CAUSE NOS. 12-CR-0609-83- 1 & 12-CR -0610-83- 1 IN THE 56T H DISTRICT COURT F ROM G ALVEST ON COUNTY

Per curiam . S L A U G H T E R , J., fi led a dis senting opi nion , in w hich Y E A R Y , J., joined.

O R D E R Applicant pleade d g uilty to two char g es of ag g rava ted assault with a deadly wea pon and was sentenc ed t o 2 5 y ear s’ imprisonment in eac h case . Applicant filed these applications for writs of habea s corpus in the county of conviction, and the district cler k forwa rded them to this Court. See T E X . C O D E C R I M . P R O C . art. 11.07. Applicant contends that his pleas wer e involuntary beca use trial couns el fa i l ed to inform Appl icant of, and investiga te, an alleg ed victim’s statement disavowing her acc usation aga i n s t Applicant. Alterna tively , if trial counsel did not have notice of this statement, Applicant’s pleas wer e2

involuntary

beca use they wer e the r esult of a Brady violation. 1 Applicant has alleg ed fac ts that, if true, might entitle him to relief

. Hill v. Lockhart , 474 U.S. 52 (1985); Brady v. United States , 397 U.S. 742 (1970); Brady, 373 U.S. 83. 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 tri al co u rt shall order trial counsel to respond to Applicant’s claims. I n developing the re cord, the trial court may use any means set out in Article 11.07, § 3(d). I t appea rs that Applicant is repr esente d by counsel. I f the trial court elec ts to hold a hear ing, it shall deter

mine if Applicant is r epre sented by counsel, and if not, whether Applicant is indige nt. 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 repr esent Applicant 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 r etained, the trial court sha ll imm ediately notify this Court of counsel’s name

. The trial court shall make finding s of fac t and conclusions of law as to whether Applicant’s pleas wer e involuntary

. The trial court may make any other finding s and conclusions that it deems appropr iate in response to Applicant’s claims. Additionally , the trial co u rt shall enter finding s reg arding lache s. Carr i o v. S t ate, 992 S.W .2d 486 (Tex. Crim. App. 1999); Ex parte Perez, 398 S.W .3d 206 (Tex. Crim. App. 2013). 2 The trial court shall make findings of fac t and conclusions of l aw wi t h i n ninety day s from

Brady v. M

aryland, 373 U.S. 83 (1963). 1 Be fore making this determination, the trial cour t shall give Applicant the oppor tunity to 2 respond a nd explain his delay

. See E x parte Smith, 444 S.W .3d 661, 670 (Tex. Crim. App. 2014) (“A n applicant must be a ffor ded this opportunity —irrespe ctive of w hether the State alleg es the delay disadvantag es its own position—before a court re commends or c oncludes that lac hes compels the a

pplication’s denial” ).3

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 , order s, 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 21, 2022 Do not publish