## IN THE COURT O F CRIMINA L A PPEA LS OF TEXA S NO. WR-82,724-01

EX P ARTE JAMES BE LL, App licant

ON AP P LICATION FOR A WRIT OF HABEAS CORP US CAUSE NO. 24827-A IN THE 3RD DISTRICT COURT

F ROM AND ERSON COUNTY

Per curiam . O R D E R Pursuant to the provisions of Ar t i cl e 1 1

. 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 ag g ravated sexual

as s au l t o f an elder ly person and sentenc ed to fifty y ear s’ imprisonment. He did not appea l h i s conviction. Applicant contends that he has newly -discover ed evidenc e of actua l innocenc e and that the State withheld favor able evidenc e from the defe nse. Applicant also contends that trial counsel was defic ient for f

ailing to c onduct a thorough investigation and discover the exculpatory evidenc e.2

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); Brady v. Maryland, 373 US 83 (1963). In these circumstance s, additional facts 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 c ourt shall order trial counsel to r espond to A pplicant’s claim of ineffe ctive assistance of counsel. The trial court shall also provide t h e prosec utor with the opportunity to re spond to Applicant’s claim that materia l, exculpatory evidenc e was improperly suppressed. 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 t he trial court elects t o hold a hearing , it shall deter mine whether Appl i ca nt is indige nt. I f Applicant i s i ndige nt and wishes to be repr esente d by counsel, the trial court shall appoint an attorney to repre sent Applicant at the hearing. 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 o f l aw as to whether the DNA rep ort was g iven to the defe nse prior to trial. The trial court shall also make finding s of fac t and conclusions of law as to whether the perf ormanc e of Applicant’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 finding s of fac t reg arding whether the prosec utor improperly suppressed evidenc e in this cause . The trial court shall also make any other findings of fac t and conclusions of l aw that it deems releva nt and appr opriate to the disposition of Applicant’s c laim for habe as cor pus relief

. 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 transcript 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 deposition, alongwith the trial court’ s supplemental finding s of fa ct and c onclusions of law, shall3

be forwar ded to this Court withi n 120 day s of the date of t his order

. Any extensions of t ime shall be obtained f

rom this Court.

Filed: Mar ch 18, 2015 Do not publish