## IN THE COURT O F CRIMINA L A PPEA LS OF TEXA S NO. WR-64,512-06

EX P ARTE MARK

RANDA LL B RISTE R, Applicant

ON AP P LICATION FOR A WRIT OF HABEAS CORP US CAUSE NO. A-090719-A R IN THE 128TH DISTRICT COURT

F ROM ORANG E COUNTY

Per curiam . O R D E R Pursuant to the provisions of Ar t i cl e 1 1

. 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). Ap p l i cant was convicted of driving while intox icated and sente nced to f orty y ear s’ imprisonment. The Ninth Court of Appea ls a ffirme d his conviction, but struc k the deadly wea pon finding from the judgme nt. Brister v

. State , 414 S.W .3d 336 (Tex. App.—Be aumont), aff’d , 449 S.W .3d 490 (Tex. Crim. App. 2014). Applicant contends, among other things, that his trial counsel rende red ineffe ctive assistance beca use counsel (1) failed to object to the State’s admission of Applicant’s ref usal of the brea

th test2

without predic ate evidenc e of a statutory war ning, (2) failed to exercise a pree mptory challeng e on veni re m em b er 22, who s tated during voir dire that her daug hter was killed by a drunk driver, (3) failed to object to the trial court’s denial of a proper strike of venire member 16, who stated that, if Applicant had a prior conviction for driving while intox icated, i t wa s likely he was g uilty of the instant offe nse, (4) fa i l e d t o o b j e c t t o t h e S t a t e ’s c o m m e n t i n v o i r d i r e t h a t A p p l i c a n t h a d “c o n v i c t i o n a ft e r c o n v i c t i o n ” a n d h a d b e e n “i n a n d o u t o f p r i s o n , ” ( 5 ) failed to investiga te g ood

cause for delay of the indictment, a n d , ( 6 ) failed to object to t h e p ro secution commenting on Applicant’s r efusa l to give a specimen a s an admission of g uilt. 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). I n 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 of i neff ecti v e as s i stance 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 hearing , it shall determine whe ther Applicant is indig ent. I f Applicant is indige nt and wishes to be repr esente d by counsel, the trial cour t s h all appoint an attorney to repre sent Applicant a t the hear ing. T E X . C O D E C R I M . P R O C . art. 26.04. The t ri al co urt 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 i en t an d, if so, whether counsel’s defic ient perf orm ance 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.3

This application will be held in abey ance until the trial court has resolved the fac t issues. The issues shall be resolved within 90 day s of this order

. A supplem en t al t ra n s cript 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 wit hin 120 day s of the date of this order. Any extensions of t ime shall be obtained f

rom this Court.

Filed: Nove mber 18, 2015 Do not publish