## 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-83,610-01

EX P ARTE LEO NARD WA F ER, Appl icant

ON AP P LICATION FOR A WRIT OF HABEAS CORP US CAUSE NO. 31,328-CR IN THE 13TH DIS TRICT COURT

F ROM NAV ARRO 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 (Te x . C ri m . App. 1967). Applicant was convicted of ag g ravated kidnapping and sentenc ed to thirty y ear s’ imprisonment. The Tenth Court of Appea ls aff irmed his conviction. W

afer v. State , No. 10-07-00367- CR (Tex. App.—Waco Aug

. 12, 2009) (not desig nated for publication). Applicant contends that trial co u n s el rende red ineffe ctive assistance beca use he failed to investigate or subpoena a motel cler k and to argue at punishment that Applicant voluntarily rele ased the complainant in a sa fe pla ce. T E X . P E N A L C O D E § 20.04(d).2

T h e S t at e responde d in part by raising lache s, and the trial court conclude d, among other things, that the State was prejudice d by Applicant’s delay in fili ng this application. Although we have broade ned the definition of prejudice in lache s deter minations, we have not adopted a statuteof-limitations period or rec og nized a “pre ci s e p er i o d” that trig g ers the application of lache s. Ex parte Perez , 398 S.W .3d 206, 216 n. 12 (Tex. Crim. App. 2013)

. As we wr o t e, “Thoug h proof of

mere passag e of time will continue to be insufficient to raise lache s, we will weig h all rele vant

e q u it a b le c o n s id e r a

ti o n s in d eter

mining whether a long- delay ed application for post-conviction relief should be barr ed by

lache s.” Id. at 219. 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). 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 counsel to r espond to the above claims. The tria l c ourt 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 determine whe ther Applica nt is indi g ent. I f Applicant is indige nt and wishes to be repr esente d b y co u n sel, the trial court shall appoint an attorney to repre sent him at the hea ring . T E X . C O D E C R I M . P R O C . art. 26.04. The trial court shall make further finding s of fac t and conclusions o f l aw as to whether counsel’s conduct was defic ient and Applicant was prejudice d. 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 Applica

nt’s claim for ha

beas c orpus re lief. This application will be held in abey ance until the trial court has resolved the fac t issues. The3

issues shall be resolved within 90 day s of this order

. A supplemental tr an s cr i p t co n taining 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 the date of this order. Any extensions of t ime shall be obtained f

rom this Court.

Filed: September

23, 2015 Do not publish