## 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-83,878-02

EX P ARTE KENNETH WAYNE JOHNSON, App licant

ON AP P LICATION FOR A WRIT OF HABEAS CORP US CAUSE NO. C34800-CR IN THE COUNTY COURT AT LAW

F ROM NAVARRO COUNTY

Per curiam . A L C

A L A , J., concurs. O R D E R Pursuant to the provision s o f Ar t i cle 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 eng ag ing in org anized criminal ac tivity and sente nced to e ighte en y ear s’ i mprisonment. He did not appeal his conviction. Applicant’s initial habea s application (the -01) asked for a late appea l. Relief was denied. Applicant has now filed a second habea s ap p l i ca t ion (this -02) challeng ing the conviction. The application is not barr ed as subsequent. T E X . C O D E C R I M . P R O C . art. 11.07 § 4; Ex parte McPhe rson , 32 S.W .3d 860, 861 (Tex. Crim. App. 2000).2

Applicant raises many claims alleg ing that his trial counsel rende red ineffe ctive assistance , including the failure to notify of a plea agree ment, to inve stigate, and to c all witnesses at trial, and it appea rs he claims counsel failed to impeach witness testimony with plea deals the witnesses had made with the State. The re is no af fidavit from trial c ounsel or finding s from the trial c ourt. 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 r espond to A pplicant’s claims of ineffe ctive 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 t he trial court elects t o hold a hearing , it shall deter mine whether Ap p l icant is indige nt. I f Applicant is indige nt and wishes to be repr esente d by counsel, the trial court shall appo i n t 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 finding s of fac t an d co n clus ions of law as to whether the perf ormanc e of Applicant ’s t ri al counsel was defic ient and, if so, whether counsel’s defic ient perf ormance prejudice d Applicant. The trial court shall also make any other finding s of fac t and conclusions of law that it deems rele vant and appropr iate to the dispositi on of Applicant’s claim for habea s corpus re lief. This application will be held in abeyance until the trial court has resolved the fac t issues. The issues shall be resolved within 90 day s of th i s o rd er . 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, alongwith the trial court’ s supplemental finding s of fa ct and c onclusions of law, shall3

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 19, 2016 Do not publish