## 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-90,121-02

EX P ARTE ANTONIO CHIMNEY, Appli cant

ON AP P LICATION FOR A WRIT OF HABEAS CORP US CAUSE NO. 22-9640-W2 IN THE 12 DISTRICT COURT T H F ROM MA DISON COUNTY

Per curiam . O R D E R Ap p l icant was convicted of murder and s entenc ed to life i mprisonment. The Tenth C o u rt of Appea ls aff

irmed his conviction. Chimney v. State , 6 S.W .3d 681 (Tex. Ap p . — W ac o 1 999). Applicant filed this application for a writ of habea s corpus in the county of conviction, and the district clerk f

orwa 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 he is actua lly innocent and that trial counsel was ineffe ctive beca use h e fa i l ed to investiga

te and prese nt evidenc e of an alternate shooter. As part of the record in wr i t number 90,121-01, which this Co u rt dismiss ed as non-compliant in 2019, Applicant provided an aff idavit from Roshaan Perry stating that he was the person who shot the victims in this case and that Applicant did not have a

g un on the nig ht of the incident. Applica nt has alleg ed fa cts that, if true,2

might entitle him to relief

. Strickland v. W

ashington , 466 U.S. 668 (1984). 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 trial counsel to respond to Applicant’s claim. I n developing the record, the trial court may use any means set out in Article 11.07, § 3(d). I f the trial court elec ts to hold a hear ing, it shall deter mine whether Applicant is indige nt. I f Applicant is indige nt and wants 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 appointed 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 , considering the totality of the circ umstances, the common-law doctrine of lache s b a r s e quitable relief in this case . Ex parte Perez , 398 S.W .3d 206 (Tex. Crim. App. 2013). The trial court shall also make finding s of fac t and conclusions of law as to whether there is new evidenc e sufficie nt to show that Applicant is actua lly innocent o f t h i s offe nse and whether trial counsel’s perf ormanc e was defic ient and Applicant was prejudice d. The trial court may make any other finding s and conclusions that it deems appropr iate in re sponse to Applicant’s c laims. The trial cour t s hall make findings of 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, af fidavits, motions, objections, proposed finding s and conclusions, order s, and transcr ipts 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 sted by the trial cour

t and obtained f

rom this Court.3

Filed: OCTOB ER 05, 2022 Do not publish