## 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-88,491-02

EX P ARTE TRACY LEE T HORN, Appli cant

ON AP P LICATION FOR A WRIT OF HABEAS CORP US CAUSE NO. CR31220-B IN THE 75TH DISTRICT COURT

F ROM LIBERTY 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 enter ed an open plea of g uilty to ag g rava ted assault and was sentenc ed by a jury to twenty y ear s’ imprisonment. The Ninth Court of Appea ls aff

irmed his conviction. Thorn v. State , No. 09-15-00340- CR (Tex. App. — Be aumont, April 20, 2016) (not de signated for publica tion). A p p li c a nt c o ntends, among other things, that his trial counsel rende red ineffe ctive as s is ta n c e 1

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

for various rea sons. Applicant alleg es that trial counsel failed to adequately advise him of the nature and conseque nces of his plea. Specifica lly , Applicant alleg es that trial counsel failed to advise him of the parole conseque nces of an aff irmative d ea d ly wea

pon finding

. Applicant alleg es that trial counsel err oneously advised Applicant to plead g uilty , knowi n g t h at h e “would testify to fac ts evidenc ing his actual innoce nce,” and allowe d Applicant to stipulate to committi ngthe offe nse as

a primary actor , rathe r than as a party

. Applicant alleg es that trial counsel failed to object when the prosec utor’s closing arguments at g uilt/i nnocenc e contra dicted the trial court’s instru ct i ons. He alleg es that trial counsel made statements ag ainst his interest during cl o s i ng arguments at punishment, and failed to object when the prosec utor introduced fac ts not in evidenc e duri ng punishment arguments. Applicant also alleg es that trial counsel failed to object when the trial court enter ed an aff

irmative deadly wea

pon finding without submitt ing the issue to the jury in the form of a spec ial issue. 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 respond to Applicant’s claim of i neff ective assistance of cou n s el

. 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 c ourt elec ts to hold a hearing , it shall determine whe ther Applicant is indig ent. I f Applicant is indige nt and wishes to be repr esente d by cou n s el , 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. 26.04.3

The trial court shall first supplement the habea s rec ord with copies of all rele vant documents, including any written plea paper s, admonishments, stipulations, and judicial confe ssions. The trial counsel shall also supplement th e habea s rec ord with a transcr ipt of the trial and punishment proce eding s. The trial court shall make finding s of fac t and conc l usions of law as to whether the perf ormanc e o f Ap p l icant’s trial counsel was defic ient and, if so, whether counsel’s defic ient perf ormanc e prejudice d Applicant. The trial court shall also make any oth er 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 sues shall be resolved within 90 day s of this order

. A supplemental transcr ipt cont ai n i n g al l 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 the date of this order

. Any extensions of ti me must be re quested by

the trial cour

t and shall be obtaine d from this Court.

Filed: September 26, 2018 Do not publish