## 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-89,495-02

EX P ARTE JAMES PREST ON BALES , Appli cant

ON AP P LICATION FOR A WRIT OF HABEAS CORP US CAUSE NO. 114-0680-15-AIN THE 114 DISTRICT COURT T H F ROM SMITH 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 wa s co n v i cted of murder and sentenc ed to life imprisonment. The Twe lfth Court of Appea ls aff irmed his conviction. Bales v. State , No. 12-16-00048- CR (Tex. App.—Ty ler Fe b. 8, 2017) (not desig nated for pub l i ca t i o n). Applicant contends, among other things, that his trial counsel rende red ineffe ctive assistance both before and duringthe 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 these2

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 cour t is the appropriate forum f or finding s of fa ct. Trial counsel has submitt ed an aff

idavit in response to Applicant’s claims. Should the trial court deter mine it needs

more information from counsel, it shall order trial counsel to pro v i d e a s upplemental aff idavit in response to Applicant’s claims o f i n ef fe ct ive 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) . In the appropr iate case , the trial court may rely on its personal re collection. Id

. I f the trial court elec ts to hold a hearing, it shall dete rmine whe ther Applica nt is indi g ent. I f Applicant is indige nt and wishes to be repr esente d by counsel, the t ri al court shall appoint an attorney to repre sent Applicant at the hearing. T E X . C O D E C R I M . P R O C . art. 26.04. The trial co u rt shall make finding s of fac t and conclusions of law as to whether the perf ormanc e of Applicant’s trial counsel was defic ient and, if so, wh et h er counsel’s defic ient perf ormanc e prejudice d Applicant. Specifica lly , the trial court shall make fi n d i n gs as to whether counsel misadvised Applicant about how self defe nse would apply at trial. I f t h e t rial court finds counsel g ave inc orre ct advice and Applica nt would have a cce pted a plea barg ain offe r but for that advice , the court shall make specific finding s as to whether the prosec ution would have withdrawn the offe r and whether the trial court would have a cce pted the off er. The trial court sha ll also make specific finding s deter

mining whether counsel err ed in not making specific objections to the j u ry char g e, and if so, whether Applicant was harme d. The trial court shall also make any other finding s of fac t and conclusions of law that it deems rele vant and appropriate to the dispositi on of Applicant’s claims for ha

beas c orpus 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: Apr il 10, 2019 Do not publish