## 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-90,384-01

EX P ARTE DANNY LEON MCR OY, Appli cant

ON AP P LICATION FOR A WRIT OF HABEAS CORP US CAUSE NO. 22,965-2016A IN THE 402 DISTRICT COURT N D F ROM WOOD 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 convicted of evading arr est in a vehicle and sentenc ed to thirty -seve n y ear s ’ i mprisonment. The Twelfth Court of Appea ls aff irmed his conviction. Mcroy v. Stat e , 12-17-00131- CR (Tex. App.—Tyler May 23, 2018) (not desig nated f

or publication). Applicant contends, among other things, that his trial counsel rende red ineffe ctive assistance beca use he did not objec t to error s in the jury char g e. Applicant has alleg ed fac ts that, if true, might entitle him to relief

. Strickland v. W

ashington ,2

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 coun s el t o respond to Applicant’s claim of i neff ective 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 n the appropr iate ca se, the trial c ourt may rely on its personal re collection. Id

. I f the trial c ourt elec ts to hold a hear ing, it shall determine whe ther Applica nt is indi g ent. I f Applicant is indige nt and wi s h es to be repr esente d by counsel, the trial court shall appoint 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 fi n d i ng s of fac t and conclusions of law as to whether the perf ormanc e of Appl i ca n t ’s trial counsel was defic ient and, if so, whether counsel’s defic ient perf ormanc e prejudice d Applicant. The trial court shall make specific finding s addre ssing whether counsel was ineffe ctive in not ob j ec ting to the parole law instruction and the lack of a burden of proof instruction applicable to the deadly wea pon finding

. The trial court shall also make any other finding s of fac t a

nd conclusions of law that it deems releva nt and appr opriate to the disposition of Applicant’s c laim for habe as cor pus 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 s u p p l em ental 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 wit hin 120 day s of the date of this order. A ny extensions of ti me must be re quested by

the trial cour

t and shall be obtaine d from this Court.3

Filed: November 20, 2019 Do not publish