IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-83,879-03

EX PARTE DAVID NORWAY WINSTEAD, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 2011-DCR-02841-E IN THE 357TH DISTRICT COURT

FROM CAMERON COUNTY

Per curiam.

O R D E R

Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the

clerk of the trial court transmitted to this Court this application for a writ of habeas corpus. Ex parte

Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of one count of

tampering with or fabricating physical evidence, and one count of possession of a controlled

substance. He was sentenced to thirtyyears’ imprisonment for the tampering count, and seven years’

imprisonment for the possession count, to be served concurrently. The Thirteenth Court of Appeals

affirmed his conviction. Winstead v. State, No. 13-12-00589-CR (Tex. App. — Coprus ChristiEdinburg, August 7, 2014 (not designated for publication).
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Applicant contends, among other things, that his trial counsel rendered ineffective assistance 1

because counsel allowed Applicant to waive the presumption of innocence by appearing in front of

the jury wearing jail clothing during trial. 

Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington,

466 U.S. 668 (1984); Ex parte Patterson, 993 S.W.2d 114, 115 (Tex. Crim. App. 1999). In these

circumstances, additional facts are needed. 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 findings of fact. The trial court

shall order trial counsel to respond to Applicant’s claim of ineffective assistance of counsel. The

trial court may use any means set out in TEX. CODE CRIM. PROC. art. 11.07, § 3(d). In the

appropriate case, the trial court may rely on its personal recollection. Id.

If the trial court elects to hold a hearing, it shall determine whether Applicant is indigent. 

If Applicant is indigent and wishes to be represented by counsel, the trial court shall appoint an

attorney to represent Applicant at the hearing. TEX. CODE CRIM. PROC. art. 26.04. 

The trial court shall make findings of fact and conclusions of law as to whether the

performance of Applicant’s trial counsel was deficient and, if so, whether counsel’s deficient

performance prejudiced Applicant. The trial court shall also make any other findings of fact and

conclusions of law that it deems relevant and appropriate to the disposition of Applicant’s claim for

habeas corpus relief.

This application will be held in abeyance until the trial court has resolved the fact issues. The

issues shall be resolved within 90 days of this order. A supplemental transcript containing all

affidavits and interrogatories or the transcription of the court reporter’s notes from any hearing or

This Court has reviewed Applicant’s other claims and finds them to be without merit. 1
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deposition, along with the trial court’s supplemental findings of fact and conclusions of law, shall

be forwarded to this Court within 120 days of the date of this order. Any extensions of time shall

be obtained from this Court.

Filed: April 6, 2016

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