## IN THE COURT O F CRIMINA L A PPEA LS OF TEXA S NO. WR-82,063-01

EX P ARTE ELMER HO WARD WHISENANT, JR., Appli cant
ON AP P LICATION FOR A WRIT OF HABEAS CORP US CAUSE NO. F 34688 A IN THE 249TH DISTRICT COURT

F ROM JOHNSON COUNTY
Per curiam . K

E L L E R , P .J., and M E Y E R S , J., wou ld d eny relief. K E A S L E R , J., fi led a dissentin g state m ent in w hich H E R V E Y , J., joined.
O R D E R Pursu an t t o t h e provisions of Article 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 convicted of six counts of ag g rava ted assault, one count of violation of a protec tive order , one count of burg lary of a habitation,
one count of reta liation, two counts of ag g rava ted sexual assault, and two counts of obstruction. He
was sentenc ed to imprisonment for seven terms of twenty y ear s, four terms of ten y ear s, and two terms of seventy y ear s. The Tenth Court of Appea ls a ffirme d his c onvictions. W hisenant v. State ,2

No. 10-01-00305- CR (Tex. App.—W aco Ma r. 12, 2003) ( not desig nated f or publication). I n six g rounds, Applicant contends that his convictions and sentenc es violate due proce ss beca use they wer e based on knowing false testimony , the State eng ag ed in misconduct, and trial counsel render ed ineffec tive assistance
. On October 15, 2014, in response to a mot ion to rema nd,
we instructed Applicant in a written order that if he wis h ed t o proper ly prese nt his documentar y evidenc e to this Court, he could file it in the county of conviction within 30 day s of the date of that order . He f

iled his evidence within 30 day s of October 15, and it wa s forwa rded to this Court a s a supplement. 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 W ei nstein , 421 S.W .3d 656 (Tex. Crim. App. 2014); Ex parte Patterson , 993 S.W .2d 114, 115 (Tex. Crim. App. 1999). I n these circ umstances, a dditional facts
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 appropriate forum for findings of fac t. The trial court shall o rd er t ri al counsel to respond to Applicant’s ineffe ctive assistance of counsel claims. 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)
. Applicant appea

rs to be repr esente d by counsel. I f he is not and the trial court elec ts to hold a hea ring , it sha ll de termine whether Applicant is indig ent. I f Applicant is indig ent and wishes to be repr esente d by counsel, the trial court shall appoint an attorney to r epre sent him a t 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 deter

mine whether (1) the aff

idavits and decla

rations Applicant filed as supplements are cre dible; (2) Applica nt’s due process rights wer e viol ated because false e vidence
was prese nted that was materia l to his convictions and sentenc es; (3) the State engag ed in3

misconduct; (4) c ounsel’s conduc t was def icient; and (5) but for counse l’s defic ient conduct ther e is a rea sonable probability that the result would have been differ ent. The trial court shall also make
an y other finding s of fac t and conclusions of law that it deems rele vant and appropr i at e t o t h e dispositi on of Applica

nt’s claims for ha

beas c orpus re lief. This application will be held in abey ance until the trial court has resolved the fac t issues. The issue s s h al l b e resolved 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 hear ing or deposition, along with the trial court’ s supplemental finding s of fa ct and c onclusions of law, shall be forwar ded to this Court within 120 day s of the da te of this order . Any extensions of ti me s hall be obtained f

rom this Court.
Filed: June 3, 2015 Do not publish