## 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-79,934-02

EX P ARTE ROBERT CANO, Applicant

ON AP P LICATION FOR A WRIT OF HABEAS CORP US CAUSE NO. 11-3-25712-D -2 IN THE 377 DISTRICT COURT T H F ROM VICTORIA COUN TY

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. 1 9 6 7 ). Ap p l icant was convicted of burg lary of a habit at i o n and sentenc ed to thirty -five y ear s’ imprisonment. The Thirteenth Court of Appea ls aff irmed his conviction. Cano v. State , No. 13-11-00568- CR (Tex. App.—Corpus Christi-Edinburg Dec . 6, 2012). Applicant contends that his trial counsel rende red ineffe ctive assistance by misleading him into believing tha t he would have a cha nce to testify

on his own behalf. Applicant has alleg ed fac ts that, if true, might entitle him to relief

. Strickland v. W

ashington ,2

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 order trial coun s el t o respond to Applicant’s claim of i neff ective 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)

. I f the trial c ourt elec ts to hold a hear ing, it sha ll de termine whe ther Applica nt is indi g ent. I f Applicant is indige nt and wishes to be repr esente d by counsel, the trial court shall ap p o i nt 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. The trial court sha ll make a de termination as to whethe r Applica nt w anted to te stify on his

own behalf and if so, whether he communicated th at d es i re t o counsel. The trial court shall also make a finding reg arding whether counsel preve nted Applicant from testify ing on his own behalf at trial. The trial court shall make finding s of fac t and conclusions of law as to whether the perf ormanc e of Applica n t ’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 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 abey ance until the trial court has resolved the fac t issues. The issues shall be resolved within 90 day s of this order. A s u p p l em ental 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 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.3

Filed: Jul y

27, 2016 Do not publish