## 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-88,537-02

EX P ARTE MATTHEW WIL LIAM LEAVELL , Appli cant

ON AP P LICATION FOR A WRIT OF HABEAS CORP US CAUSE NO. W9155-2 IN THE 355TH DISTRICT COURT

F ROM HOOD 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. 1 9 6 7 ). Ap p l icant was convicted of burg lary of a habitation and sentenc ed to eig hteen y ear s’ imprisonment. The Second Court of Appea ls aff irmed his conviction. Leave l l v. State , No. 02-04-00124- CR (Tex. App.— For t Worth 2005)(not desig nated f

or publication). Applicant contends that his trial counsel rende red ineffec t i ve assistance beca use counsel failed to investiga

te the discrepa

ncies i n t he State’s evidenc e, failed to conduct a pre- trial investigation, and failed to c halleng e the inconsistent witness stateme nts.2

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 o f i n ef fec tive assistance 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)

. I f the trial c ourt elec ts to hold a hear ing, it shall determine whe ther Applica nt is indi g ent. I f Applicant is indige nt and wi s h es 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. The trial court shall make fi n d i ng s of fac t and conclusions of law as to whether the perf ormanc e of Appl i ca n t ’s trial counsel was defic ient and, if so, whether counsel’s defic ient perf ormanc e prej u d i ce d Ap plicant. The trial court shall also make finding s as to whether Applicant’s claims are barr ed by the equitable doc trine of laches. The trial court shall also make 1 any other finding s of fa ct an d conclusions of law that it deems rele vant and appropr iate to the dispositi on of Applica

nt’s claim for ha

beas c orpus re lief. This application will be held in abeyance until the trial court has resolved the fac t issues. The issues sh al l b e re s o l ved within 90 day s of this order

. A supplemental transcr ipt containing 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, along with the trial court’ s supplemental finding s of fa ct and c onclusions of law, shall

Be fore making this determination, the trial cour t shall give Applicant the oppor tunity to 1 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 whether 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

be for war ded to this Court withi n 120 day s of the date of t his order

. Any extensions of ti me must be re quested by

the trial cour

t and shall be obtaine d from this Court.

Filed: Oc tober 24, 2018 Do not publish