## 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-90,210-01

EX P ARTE NICHOLAS RYAN ONEAL, App licant

ON AP P LICATION FOR A WRIT OF HABEAS CORP US CAUSE NO. CR18223-A IN THE 271S T DIST RICT COURT

F ROM WISE 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 was convicted of possession with intent to deliver a controlled substance and sentenc ed to thirty y ear s’ imprisonment. T h e Second Court of Appea ls aff

irmed his conviction. O’Neal v. State , No. 02-16-00217- CR (Tex. App. — For t Worth August 24, 2017) ( not desig nated f or publication. A p p li c a nt c o ntends, among other things, that his trial counsel rende red ineffe ctive as s is ta n c e 1

This Court has considere d Applicant’s other claim and f

inds it t o be without merit. 12

beca use trial counsel failed to reque st an instruction on the lesser- included offe nse of possession of

a controlled substance, f

ailed to file a

motion to s uppress the e vidence on the basis of an unlawful

war rantless sear ch and seizure, and failed to s u b p o ena the other occupa nt of the vehicle in which Applicant wa s sitti ng at the time of his ar rest. 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 o rd er t ri al counsel to respond to Applicant’s claims of ineffe ctive assistance of counsel. Specifica lly , trial counsel shall state whether there was any evidenc e indicating that if Applicant was g uilty it wa s only of the lesser of fense of possession of a c ontrolled substance

. Trial counsel shall state whether Applicant pleade d true to prior sequential felony convictions, and whether Applicant would have been subject t o a l o we r p u n ishment rang e if he wer e convicted of the offe nse of possession of a controlled substance without the intent to deliver. Trial counsel shall state whether there was any basis upon which he could have filed a motion to suppress the evidenc e, and if so, why counsel did not file such a motion. Trial counsel shall state whether the other occupa nt of the vehicle in which Applicant was arr ested took responsibility for the drugs, and if so, whether the other occupa nt was available and willing to testify to this fac t. 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 case , the trial court may rely on its persona l rec ollection. Id

. I f the trial c ourt elec ts to hold a hearing , it shall de termine whether Applicant is indig ent. I f Ap p l icant is indige nt and wishes to be repr esente d by counsel, the trial court shall appoint an3

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 and conclusions of law as t o wh ether the perf ormanc e o f Ap plicant’s trial counsel was defic ient and, if so, whether counsel’s defic ient perf ormanc e prejudice d Applicant. The trial court shall also make any other finding s o f 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 i s s u es s h all be resolved within 90 day s of this order

. A supplemental transcr ipt containing al l 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 for war ded to this Court withi n 120 day s of the date of this order. A ny extensions of t ime must be re quested by

the trial cour

t and shall be obtaine d from this Court.

Filed: Aug ust 21, 2019 Do not publish