## 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-90,935-01

EX P ARTE ANDREW LOUIS CANTU, Appli cant

ON AP P LICATION FOR A WRIT OF HABEAS CORP US CAUSE NO. 12-11-27040-A -1 IN THE 24TH DISTRICT COURT

F ROM VICTORIA COUN TY

Per curiam . O R D E R Applicant was convicted of unlawful delivery of controlled substance in penalty g roup 1 (>4 g rams, but <200 g rams), and sentenc ed t o ten y ear s’ imprisonment. Applicant’s sentenc e was suspended and he was place d on community supervision for five y ea rs . Applicant’s community supervision was later revoke d and he was sentenc ed to ten y ear s’ imprisonme n t. The Thirteenth Court of Appea ls aff

irmed his conviction. Cantu v. State , No. 13-17-00360- CR (Tex. A p p . — Co r pus Christi-Edinburg, Ma

y 31, 2018)(not designa ted for publication). Applicant filed this application for a wr i t of habea s corpus in the county of conviction, and the district cler k forwa rded it to this Court. See T E X . C O D E C R I M . P R O C . art. 11.07. Applicant contends that the State’s prosec uting a tt o r n e y a t his orig inal trial wher e he rec eived2

a suspended sentenc e and community supervision was the judge presiding over his revoc ation of that

comm u n i t y s u pervision and was there fore disqualified. Applicant has alleg ed fac ts that, if true, might entitle him to relief

. Tex. Const. art. V, § 11.5; Tex. Code Crim. Proc. art. § 30.01; W hitehead

v. State , 273 S.W .3d 285, 286 n.3 (Tex. Crim. App. 2008); Gresham v. State , 66 S.W

. 845, 43 Tex. Crim. 466, 467 (1902); January v. State , 38 S.W

. 179, 36 Tex. Crim. 488, 491 (1896). Acc ording ly , the rec ord should be develope d. The trial court is the appropr iate forum for finding s of fac t. T E X . C O D E C R I M . P R O C . art. 11.07, § 3(d)

. The trial court shall order the State to respond to Applicant’s claim. I n developing the rec ord, the trial cour

t may use any means set out in Article 11.07, § 3(d). I f the trial c ourt elec ts to hold a hear ing, it shall dete rmine whe ther Applicant is indigent. I f Applica nt is indi g ent and wa

nts to be repr esente d by counsel, the trial court shall appoint counsel to repr esent him at the hear ing. See T E X . C O D E C R I M . P R O C . art. 26.04. I f counsel is a ppointed or reta ined, the trial court shall immediately notify this Court of counsel’s name

. The trial court shall make finding s of fac t and conclusions of law as to whether the judge at the revoc ation of Applicant’s community supervision was the prosec uting attorney at the orig inal plea hear ing. The trial court may make any other finding s and conclusions that it deems appropr iate in response to Applica

nt’s claims. The trial court shall make findings o f fac t and conclusions of l aw within ninety day s from the date of this order

. The district cler k shall then immediately forwa rd to this Court the trial court’s finding s and conclusions and the rec ord develope d on rema nd, including, among other things, aff idavits, motions, objections, proposed finding s and conclusions, order s, and transcr ip t s from hear ings and depositions. See T E X . R. A P P . P. 73.4(b)( 4). Any extensions of time must be reque sted3

by the trial cour

t and obtained f

rom this Court.

Filed: F ebrua

ry 26, 2020 Do not publish