## 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 NOS. WR-84,715-01, -02 and -03

EX P ARTE ANTHONY LYNN THIBO DEAUX, Applicant

ON AP P LICATIONS FOR A WRIT OF HABEAS CORPUS CAUSE NOS. 12-154-CR-A , 12-155-CR-A, and 12-156-CR- A IN THE 87th DIS TRICT COURT F ROM F REEST ONE COUNTY

Per curiam . O R D E R Pursuant to the provisions of Article 11.07 of the Tex as C o d e o f Criminal Procedur e, the cler k of t he trial court transmitt ed to thi s Court these applications for a writ of habeas corpus. Ex parte Y oung , 418 S.W .2d 824, 826 (T ex . Crim. App. 1967). Applicant was convicted of sexual assault and twice for indece ncy with a child. He was sentenc ed to te n year s’ imprisonment f or the sexual assault conviction and four year s’ imprisonment for eac h indece ncy with a child conviction. The Tenth Court of Appea ls aff irmed his convictions. Thibodeaux v. State , Nos. 10-13-00466- CR, 10-13- 0 0 4 6 7 -C R, and 10-14-00005- CR (Tex. App.—Waco J uly 30, 2015 (not designated for publication).2

Applicant contends, inter alia , that his trial counsel rende red ineffe ctive assistance beca use he failed to inv e stigate Applicant’s phone rec ords for exculpatory evidenc e and he failed to interview and subpoena witnesses J immy Campbell, L arr y Upshaw and Mattie King

. Applicant also contends that he is act u al l y i n n o cent based upon a subsequent admission by the complainant at his codefe ndant’s trial that she c ommitt ed per jury when she testified at Applica nt’s trial. 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 appropriate forum for finding s of fac t. The trial court shall order trial counsel to respond t o Ap p l i cant’ s claim of ineffe ctive assist ance 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). In the appropriate ca se, the trial c ourt may rely on its personal re collection. Id

. As it perta ins to Applicant’s claim of actua l innocenc e, we order the trial court consider these three issues when makingits findings of f act a nd conclusions of law : A. Whether Applicant’s alleg ation that the complainant later admitted in his codefe ndant’s trial that she c ommitt ed per jury is true; B. I f true, whether

the complainant c ommitt ed per jury at Applicant’ s trial; and C. I f the com p l ainant did commit perjury , in light of all the evidenc e prese nted at Applicant’s trial, does this new evidenc e unquestionably establish Applicant’s innocenc e, so that no rea sonable juror could have found him guilty in light of the new evidenc e. 1 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 cou n s el , the trial court shall appoint an

See Ex parte Tuley , 109 S.W .3d 388 (Tex. Crim. App. 2002)

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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 as t o wh ether the perf ormanc e o f Ap plicant’s trial counsel was defic ient and, if so, whether counsel’s defic ient perf ormanc e prejudice d Applicant. The trial court shall also make finding s of fac t and conclusions of law a s to whether A

pplicant is actua lly

innocent of this off

ense. The trial court shall also make any other finding s of fac t and con cl u s i o n s o f law that it deems rele vant and appropriate to the dispositi on of Applica

nt’s claim for ha

beas c orpus re lief. These applications 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 orde r. A supplemental transcript c ontaining 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 for war ded to this Court within 120 day s of t he date of t his order . Any extensions of ti me shall be obtained f

rom this Court.

Filed: Apr il 6, 2016 Do not publish