## 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-92,346-01

EX P ARTE CARLTON DONNELL T ERRELL, Ap plicant

ON AP P LICATION FOR A WRIT OF HABEAS CORP US CAUSE NO. 1506164-A IN THE 182ND DISTRICT COURT

F ROM HARRIS COUNTY

Per curiam . O R D E R Applicant was convicted of ag g rava ted robber y and sentenc ed to forty y ear s’ imprisonment. The Four teenth Court of Appea ls aff irmed his conviction. Terrell v. State , No. 14-18-00790- CR (Tex. App.—Houston [14t h Dist.] del. J ul. 16, 2019). Applicant filed this application for a writ of habea s corpus in the county of conviction, and the district cler k forwa rded it to this Court. See T E X . C O D E C R I M . P R O C . art. 11.07. Applicant claims that the State violated Brady , that the State obtained a false identification of him at trial, and that trial and appellate counsel wer e both i n eff ective. Brady v. Maryland , 373 U.S

. 8 3 (1 9 63); Ex parte W einstein , 421 S.W .3d 656 (Tex. Crim. App. 2014); Strickland v. W ashington , 466 U.S. 668 (1984).2

The State disclosed evidenc e afte r trial that the complain an t, who testified and identified Applicant at trial, had an alias and a prior criminal history , which included compelling prostitution of a minor, transporta tion of untaxed tobacc o products, theft of proper ty g rea ter than $500 and less than $1,500, illega l use of food stamps le ss tha n $200, conspirac y to smug g le and tra nsport illega l aliens into the United States, and b ri ng ing illega l aliens into the United States for financ ial g ain. Applicant say s, “[This Brady evidenc e] would have explain[ ed] some of what I stated in my testimony

. Also [i t would have] show[n] that the co m p l ai nant wasn’t [an] innocent victim in this

case or law a

biding c itiz en.” T here are no finding s on the claim. Applicant say s no witness identified him afte r the offe nse althoug h shown photo lineups within hours of the robber y , and he say s one of the witnesses picked out two differ ent p eople in separ ate photo lineups. He say s the prosec utor, on the day of but befor e trial, had Applicant broug ht into the courtroom to be viewed by at least one witness, and then at trial the witnesses wer e “100% sure I was one of the c riminals.” He que stions: “How’s t hat, after 21⁄2 [y ear s] had passed they was 100% sure and about 2 [hours] afte r the crime was committed they didn’t pick me out of the photo sprea d? ” The re a

re no f indings on the c laim. The Brady evidenc e was disclosed to both trial and appellate counsel afte r trial. I t is not clea r whether either counsel addre ssed the evidenc e in a motion for new trial, and appellate counsel filed a brie f in ac corda

nce w ith Anders v. State of Cal. , 386 U.S. 738, 744 (1967). Applica nt complains th a t b o th his trial and appellate counsel provided ineffe ctive assistance reg arding the Brady ev id e n c e . Applicant also complains that trial counsel failed to eff ectively repr esent him at trial reg arding other witnesses, including a police detec tive who he say s falsely chang ed her te s ti mony afte r speaking with trial counsel, and a witness Applicant say s trial counsel frig htened into not testify ing on his behalf

.3

There is no response from either trial or appellate counsel or finding s from the trial court reg arding the claims. Applicant has alleg ed fac ts that, if true, might entitle him to relief

. 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 shall order tr i al an d appellate counsel to respond to Applicant’s claims. I n developing the record, the trial court may use any means set out in Article 11.07, § 3(d). I f the trial co u rt 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 repr esente d by counsel, the trial court shall appoint counsel to repr esent him at the hear ing. S ee 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 co n clusions of law resolving the disputed fac tual issues. The tri al court may also make any other finding s and conclusions that it deems appropr iate. The trial court shall make fin d i n gs of fac t and conclusions of law 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 n d , in c lu d in g , a

mong other things, aff idavits, motions, objections, proposed finding s and conclus ions, 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: April 14, 2021 Do not publish