## IN THE COURT O F CRIMINA L A PPEA LS OF TEXAS NO. WR-82,685-01

EX P ARTE BIL LY WAYNE HAYNES, Appl icant

ON AP P LICATION FOR A WRIT OF HABEAS CORP US CAUSE NO. B-35,839-A IN THE 161ST DISTRICT COURT

F ROM ECTOR 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). A j ury co n victed Applicant of murder and assessed a l ife sentence. The Eleventh Court of Appeals aff irmed t he conviction. Hayne s v. Stat e , No. 11-11-00197- CR (Tex. App.—Eastland J une 13, 2013) ( not desig nated f or publication). Applicant raises sever al claims of prosec utorial misconduct and ineffe ctive assi s ta n c e of trial and appellate counsel. He has alleg ed fac ts that, if true, might entitle him to relief

. Stri ckland v. W ashington , 466 U.S. 668 (1984); Ex parte W einstein , 421 S.W .3d 656, 665-6 (Tex. Crim. App.-2-

2014); Ex parte Patterson , 993 S.W .2d 114, 115 (Tex. Crim. App. 1999). In g rounds 1, 2, 6, and 8, he claims that the State prese nted testimony at trial from a jailhouse informant re gar d i n g an alleg ed admission and threat Applicant made to the informant. Applicant states he never talked with this informant, never made an admission, and never threa tened him. He claims he was never housed with the informant or around him at the jail to make the admission and threat. He argues th at t h e S tate prese nted false testimony of an admission and a threat, that trial counsel should have exposed the testimony as fa lse, and that a

ppellate c ounsel should have r aised

a prosec utorial misconduct claim reg arding false testimony on d i rec t appea l. He also faults trial counsel for not r equesting a limit ing instruction reg ardingthe threat he alleg edly made ag ainst the jailhouse informant. In g round 3, Applica nt claims that the State prese nted false testimony from a jailer reg arding an alleg ed admission and that trial counsel failed to expose the jailer’s testimony as false. In g round 4, he claims that counsel failed to object to the State’s char acte rization of his tattoos and using them as evidenc e ag ainst him. In g rounds 5 and 7, he contends that counsel should ha ve reque sted acc omplice-witness instructions reg arding two witnesses who testified and that appellate counsel should have raised a n acc omplice-witness issue on dire ct appe al. There is no response from trial or appellate counsel in the rec ord provided to this Court, and there are no finding s from the trial court. 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), t he trial court is the appropriate for

um for finding s of fa ct. The trial court shall order trial and appellate counsel to respond to Applicant’s cl ai m s of ineffe ctive assistance by explaining counsels’ repr esentation of Applicant, including appli cable strategy and tactica l de cisions. T o obtain the response , the trial court may use any means set out in-3-

T E X . C O D E C R I M . P R O C . art. 11.07, § 3(d). I f the trial court elec ts to hold a hearing, it shall deter mine whether Applicant is indige nt. I f Applicant is indige nt and wishes to be repr esente d by counsel, the trial court sha ll 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 court shall make finding s of fac t and conclusions of law reg arding the claims raised in the habea s application. The trial court may also make any other finding s of fac t and conclusions of law it deems rele vant and appropriate to the dispositi on of Applicant’s claims for habea s corpus relief

. 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 this order

. A supplement al t ranscript 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, shall be forwa rded to this Court within 120 day s of the date of this order

. Any extensions of time shall be obtained fr om this C ourt. Filed: F ebrua

ry 25, 2015 Do not publish