## 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-89,105-01

EX P ARTE TOS HA LYNN HOUSTON, App licant

ON AP P LICATION FOR A WRIT OF HABEAS CORP US CAUSE NO. 249-00873A IN THE 249TH DIS TRICT COURT

F ROM SOMERVELL 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 enter ed an open plea of g uilty to possession of a controlled subst ance , and was sentenced by a jury to eig hty y ear s’ i mprisonment. The Tenth Court of Appea ls aff irmed her conviction. Houston v. State , No. 10-16-00219- CR (Tex. App. — Waco 2017) ( not desig nated f or publication). A p p li c a nt c o nte n d s , a

mo n g other things, that her trial counsel rende red ineffe ctive as s is ta n c e 1

This Court has review ed Applica nt’s other c laims and finds them to be without merit. 1for various rea sons. Trial counsel has submitt ed an aff idavit responding to Applicant’s alleg ations, but the copy of the aff

idavit included in the habea s rec ord appea rs to be missing at least a pag e. The copy of the aff

idavit in the rec ord does not specific ally addre ss Applicant’s claim that trial counsel should have filed a

motion to s uppress e vidence , or is missing the portion addr essing that claim. Applicant has alleg ed fac ts that, if true, might entitle her to relief

. Strickland v. W

ashington , 466 U.S. 668 (1984); Ex parte Patterson , 993 S.W .2d 114, 115 (Tex. Crim. App. 1999). I n 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 supplement the habea s rec ord with a complete copy of trial counsel’s aff idavit. I f trial counsel did not addre ss the issue of why he did not file a motion to suppress evidenc e seized in a traff ic stop and in a subsequent sear ch of Applicant while in j ai l in his aff idavit, trial counsel shall order trial counsel to respond to those specific issues. 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 . ar t

. 1 1.07, § 3(d). I n 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 sha ll de termine whether Applicant is indige nt. I f Applicant is indige nt and wish es t o be repr esente d by counsel, the trial court shall appoint 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 s h al l make finding s of fac t and conclusions of law as to whether the p er formance of Applicant’s trial counsel was defic ient and, if so, whether counsel’s defic i en t 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 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. Theissues shall be resolved within 90 day s of this o rd er . A s upplemental 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 hear ing 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 t he date of this order. A ny extensions of ti me must be re quested by

the trial cour

t and shall be obtaine d from this Court.

Filed: November

7, 2018 Do not publish