## 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-86,495-01

EX P ARTE JOHNNY RAY WALK ER, Appl icant

ON AP P LICATION FOR A WRIT OF HABEAS CORP US CAUSE NO. W-13-60285-Y (A) INTHE CRIMINAL DISTRICT COURT NO. 7 F ROM DALLAS COUNTY

Per curiam . A L C A L A , J., concurs. O R D E R Pursuant to the provision s o f Ar t i cle 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 was co n v i ct ed of murder and sentenc ed to ninety -nine y ear s’ imprisonment. The Fifth Court of Appea ls aff irmed his conviction. W alker v. State , No. 05-14-01229- CR (Tex. App. — Dallas, J anuar y 21, 2016) (not desig nated for publication). Applicant conten d s , among other things, that his trial counsel rende red ineffe ctive 1

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

assistance beca

use trial counsel failed to adequately investigate and prese nt evidenc e to impeach the State’s witnesses and to establish a defe nse of mistaken identifica t i o n . Specifica lly , Applicant alleg es that witness Curtis Smit h picked out another person’ s picture from a pre- trial photo lineup, and that there was a video that would have proved that witness J immy Sheppard could not have seen Applicant shoot the victim as he testified a t trial. Applicant allege s that trial counsel f ailed to use either of these piec es of e vidence to impeach the w itnesses at trial. 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 as s i s t an ce 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 c ourt elec ts to hold a he aring , it sha ll de termine whether Applicant is indige nt. I f Applicant is i n d i gent and wishes to be repr esente d by 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. T h e t rial court shall make finding s of fac t and conclusions of law as to whether t h e perf ormanc e of Applicant’s trial counsel was defic ient and, if so, whether co u n sel’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. The3

issues shall be resolved within 90 day s of this order

. A supplemental tr an s cr i p t co n taining 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, alongwith 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 t ime must be re quested by

the trial cour

t and shall be obtaine d from this Court.

Filed: Mar ch 29, 2017 Do not publish