## 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-84,593-01

EX P ARTE CHARLES WAYNE WARDEN, Appli cant

ON AP P LICATION FOR A WRIT OF HABEAS CORP US CAUSE NO. 07-CR- 2122-B IN THE 138T H DISTRICT COURT

F ROM CAM ERON 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 , 4 1 8 S

. W

. 2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of one count of

m u rd er an d one count of ag g rava ted assault, and sentenc ed to six ty -five and fiftee n y ear s’ imprisonment, respec tively

. The Thirteenth Court of Appea ls a ffirme d his c onviction. W arden v. State , No. 13-09-00116- CR (Tex. App.— Corpus Christi–Edinburg Sept. 16, 2010)(not desig nated for publication). Applicant contends that his trial counsel rende red ineffe ctive assistance beca use counsel (1) failed to e nhance the dash came ra video of the offe nse fr om the patrol vehicle, (2) failed to loc ate,2

interview, subpoena, and call three ey ewitness who had observe d the confr ontation, (3) failed to call Offic er I sidro Calvil l o , who observe d the confr ontation, (4) incorre ctly focuse d on the insanity defe nse, (5) failed to focus on a defe nsive strateg y of self-de fense from multipl e assailants, and, (6) failed to ra ise a timely

objection to the State’s expert. Applicant also contends that appellate counsel rende red ineffe ctive assistance for failing to raise the fac t that the char g e on self-de fense should have bee n gra n t ed based on the fac t that Applicant had been subjected to multipl e attacks by multipl e assailants, and for failing to attack the trial court’ s ruling that self-de fense and the de fense of insanity wer e mutually

exclusive. 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 appropr iate forum for finding s of fac t. The trial court shall order trial counsel to respond to Appli ca n t ’s claim of i neff ective assistance of counsel. The trial court shall also order appellate counsel to respond to Applicant’s claim of ineffe ctive 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 t appea rs that Applicant is repr esente d by counsel. The trial court shall deter mine whether Applicant i s re p re s ented by counsel, and if not, whether Applicant is indige nt. I f Applicant is indige nt and wishes to be repr esente d by counsel, the trial court shall appoint an attorney to repr esent Applicant at the he aring . T E X . C O D E C R I M . P R O C . art. 26.04. The trial court shall make findin gs o f fact and conclusions of law as to whether the perf ormanc e of Applicant’s tr i al co unsel 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 conclusions3

o f law as to whether the perf ormanc e of Applicant’s appellate counsel was defic ient and, i f s o , whether counsel’s defic ient perf ormanc e prejudice d Applicant. The trial court shall also make any other finding s of fac t and conclusions of law that it deems rele vant and appropr iate to the dispositi on of Applica

nt’s claim for ha

beas c orpus re lief. This application will be held in abeyance until the trial court has resolved the fac t issues. The issue s s h al l b e resolved within 90 day s of this order

. A supplemental 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 hearing 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 within 120 day s of the date of this order . Any extensions of ti me s hall be obtained f

rom this Court.

Filed: Apr il 20, 2016 Do not publish