## 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-83,879-03

EX P ARTE DAVID NORWA Y WINSTEAD, App licant

ON AP P LICATION FOR A WRIT OF HABEAS CORP US CAUSE NO. 2011-DCR- 02841-E IN THE 357T 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 , 418 S.W .2d 824, 826 (Tex. Crim. App. 1967). Applicant wa s co n v i cted of one count of tampering with or fabr icating phy sical evidenc e, and one cou n t o f p ossession of a controlled substance. He was sentenc ed to thirty y ear s’ imprisonment for the tampering count, and seven y ear s’ imprisonment for the possession count, to be serve d concur rently

. The Thirteenth Court of Appea ls aff irmed his convictio n . W instead v. State , No. 13-12-00589- CR (Tex. App. — Coprus ChristiEdinburg , Aug ust 7, 2014 (not desig nated f or publication).2

Applicant contends, among other things, that his trial c o u n s e l r e n d e r e d in e f

f ective assistance 1 beca use counsel allowed Applicant to waive the presumption of innocenc e by appea ring in front of the jury wea ringjail clothing dur ing tr ial. 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 Applicant’s claim of i neff ec t i v e 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). In the appropr iate ca se, the trial c ourt may rely on its personal re collection. Id

. I f the trial cour

t elects to hold a he aring , it shall determine whe ther Applica nt is indige nt. I f Applicant is indige nt and wishes to be repr esente d by counsel, the trial court shall appo i n t an attorney to repre sent Applicant at the hear ing. 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 an d co n clus ions of law as to whether the perf ormanc e of Applicant ’s t ri al counsel was defic ient and, if so, whether counsel’s defic ient perf ormance 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 Applicant’s claim for habea s corpus re lief. This application 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 th i s o rd er . 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

This Court has review ed Applica nt’s other c laims and finds them to be without merit. 13

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 t he date of this order. A ny extensions of ti me shall be obtained f

rom this Court.

Filed: Apr il 6, 2016 Do not publish