## 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-82,850-01 and -02

EX P ARTE ANTHONY EUGENE JOHNSON, App licant

ON AP P LICATIONS FOR A WRIT OF HABEAS CORPUS CAUSE NOS. W08-71994-V(A) AND W11- 00273-V(A ) IN THE 292nd DISTRICT COURT F ROM DALLAS COUNTY

Per curiam . O R D E R Pursuant to the provisions of Article 11. 0 7 o f t h e Texas Code of Criminal Procedur e, the cler k o f t h e t ri al court transmitted to this Court these applications for writs of habea s corpus. Ex parte Y oung , 418 S.W .2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of ag g ravated assault and manslaug hter a nd sentenc ed to ten and twenty y ear s’ imprisonment, r espec tively

. The Fifth Cour t of Appea ls aff irmed his convictions. Johnson v. State , Nos. 05-12-00743- CR & 05-12-00744- CR (Tex. App.—Dallas J uly 3, 2013) (not desig nated f or publication). On Octobe r 7, 2015 the pa rties wer e orde red to brie f the followingissues: A. The standard for harm set out in Vasquez v. State , 830 S.W .2d 948 (Tex. Crim. App. 1992), is the proper s tandar d when trial counsel fa ils to request a jury instruction. I n Vasquez , this C o u rt held that, due to trial counsel’s failure to reque st an instruction on the defe nsive issue of nec essity , the jury2

was prec luded from g iving aff ect to the appellant’ s defe nse and that “in itself undermines our confide nce in the conviction sufficie ntly to convince us that the rest of the trial might have been d i ff er ent had the instruction been reque sted and g iven.” Id . at 951; and B. Counsel re ndere d ineffe ctive assistanc e in this case. The brie fs of the pa

rties wer e due by

Dec ember

7, 2015. On October 20, 2015 this Court rec eived a letter noti fying t h e C ourt that in both case s the Finding s of Fa ct and Conclusions of L aw signe d by the habea s judge had been vacated prior to being sent to this Court on Marc h 13, 2015. The order vacating the Finding s of Fa ct and Conclusions of L aw wa s included with the letter. This Court relied on the vacated Finding s of Fa ct and Conclusions of L aw when it set these

case s to be briefe d. I t is now clea r from the rec ord that the Finding s of Fa ct and Conclusions of L aw

are void and that the rec ords wer e forwa rded prematurely

. New Finding s of Fa ct and Conclusions of L aw in these case s need to be filed and se nt to this Court. These applications will be held in abeyance u nti l th e h a b e a s c o urt has resolved the fac t issues. We now rema

nd these a pplications to the 292 District Court of Dallas County to allow the judg e n d assig ned to these case s to complete an ev i d en t iary investigation and enter Finding s of Fa ct and Conclusions of L aw. Supplemental rec ords containing the new habea s judge ’s supplemental Finding s of Fa ct and Conclusions o f L aw and any supporting aff idavits and transcr ipts, shall be forwa rded to thi s Court within 120 day s of t he date of this order. A ny extensions of ti me shall be obtained from this Court. These applications and the briefing order s will be held in abeyance until further order s from this Court. Filed: Oc tober 28, 2015 Do not publish