## IN THE COURT O F CRIMINA L A PPEA LS OF TEXA S NO. WR-83,396-01

EX P ARTE BRYAN SCOTT H ORTON, App licant

ON AP P LICATION FOR A WRIT OF HABEAS CORP US CAUSE NO. 7125-A IN THE 27TH DIS TRICT COURT

F ROM LAMP ASAS COUNTY

Per curiam . O R D E R Pursuant to the provisions of Ar t i cl e 1 1

. 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, who was a juvenile at the time of this offe nse, was cer

tified to sta

nd trial as an adult, and was subsequently convicted of murder and sentenc ed to forty y ear s’ imprisonmen t
. The Third Court of Appea ls aff irmed his conviction. Horton v. State , 78 S.W .3d 701 (Tex. App. — Austin, May 31, 2002) . Applicant contends, among other things, that the attorney who repr esente d him dur ing the 1

This Court has considere d Applicant’s other claims and finds them to be w ithout merit. 12

transfe r proce eding s, at trial and on direc t appea l rende red ineffe ctive assistance beca use counsel did not object to err ors in the transf er pr ocee dings a

nd did not raise those e rror s on direct a ppeal. Applicant has alleg ed facts t hat, i f t rue, might entitle him to re l i ef

. S mi th v. Robbins , 528 U.S. 259, 285-86 (2000); Strickland v. W ashington , 466 U.S. 668 (1984). I n these circ umstances, additional fac ts are ne eded. A s we he ld in Ex parte Rodriguez , 334 S.W .2d 294, 294 (Tex. Crim. App. 1960), the tria l court is the appr opriate f orum for f

indings of f

act. The trial court sha ll order counsel to r espond to Applicant’s claim of ineffe ctive assistance of counsel. Specifica lly , counsel shall state whether the juvenile c o u rt ’s wa i v er of jurisdiction and order of transfe r t o the criminal court was supported by adequate finding s of fac t as require d by T E X . F A M . C O D E § 54.02, and if not, why counsel did not object. Counsel shall also state whether Applicant was persona lly serve d with

a summons and copy o f t h e p etition as require d by T E X . F A M . C O D E § 53.06. Counsel shall state whether there wer e any issues rela ting to the transfe r proce eding s which could have formed the basis for an appea l from the transfe r, and if so, why counsel did not raise those issues in the appea l from Applicant’s c onviction as requir ed by T E X . C O D E C R I M . P R O C . art. 44.47. 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 f t he trial court el ects to hold a hearing , it shall deter mine whether Applicant is indige nt. I f Appl icant is indige nt and wishes to be repr esente d by counsel, the trial court shall appoint an attorney to repre sent Applicant a t the hear ing. T E X . C O D E C R I M . P R O C . art. 26.04. Be cause Applicant’s co n viction in this case was final in 2002, but he did not file this application until approximately thirteen y ear s later, there is a possibili ty that Applicant' s claims may be prec luded by lache s. Howeve r, beca use the rec ord is silent on the circ umstances that may excuse this substantial delay , we r eser ve judg ment as to whethe r lac hes bar s Applicant' s reque st for re lief3

until he is g iven an opportunity to explain his delay ed application. See Ex parte Smith , 444 S.W .3d 661 (Tex. Crim. App. 2014). The trial court shall provide Applicant with the opportunity to explain his delay in seeking habeas relief , and there afte r the trial court shall make finding s of fac t and conclusions of law as to whether Applicant' s claims should be barr ed by lache s. The trial court shall make finding s of fac t and conclusions of law as to whether the perf ormanc e of Applicant’s counsel was deficient and, if so, whether counsel’s defi ci en t perf ormanc e prejudiced Applicant. The trial

co urt shall also make any other findings of fac t and conclusions of l aw that it deems r el ev an t an d appropr iate to the disposition of Applicant’s cla im for habe as cor pus relief

. This application will be held in abey ance until the trial court has resolved the fac t issues. The i s sues shall be resolved within 90 day s of this order

. A supplemental transcr ipt cont ai n i n g al l 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 t his Court withi n 120 day s of the date of this order

. Any extensions of t ime shall be obtained f

rom this Court.

Filed: Jul y

29, 2015 Do not publish