## 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-90,679-01

EX P ARTE DANNY G IP SON, App licant

ON AP P LICATION FOR A WRIT OF HABEAS CORP US CAUSE NO. 10F 0430-005-A IN THE 5 DISTRICT COURT T H F ROM BOWIE COUNTY

Per curiam . O R D E R Applicant was convicted of indece ncy

with a child by

exposure and sentenc ed to 10 y ear s’ imprisonment. Applicant filed this application for a writ of habea s corpus in the county of conviction, and the district cler k forwa rded it to this Court. See T E X . C O D E C R I M . P R O C . art. 11.07. Ap p l i ca n t contends that appellate counsel has not contac ted Applicant and has taken no action to perf

ect the appea l. The deadline for filing a direc t appea l has passed. Thus, it appea rs that counsel failed to timely file a notice of appeal. Ex parte Axe l , 757 S.W .2d 369 (Tex. Crim. App. 1988); Jones v . State , 98 S.W .3d 700 (Tex. Crim. App. 2003). Additionally , Applicant alleg es that he rec eived ineffe ctive assistance of trial counsel when counsel incorrec tly advised him that this was a 3g offe nse and that he would have to serve half of2

his sentenc e if he did not plead g uilty

. Fur ther, trial co u n s el failed to subpoena witnesses and evidenc e that would have proven the photo lineup was obtained illega lly

. Applicant asser ts that he would not have plea ded guilty , but for trial c ounsel’s def icient per formanc e. Applicant has al l ege d fa ct s that, if true, mi g ht entitle him to relief

. Smith v. Robbins , 528 U.S. 259 (2000); Ex parte Miller , 330 S.W .3d 610 (Tex. Crim. App. 2009). Acc ording ly , the rec ord should be develope d. The trial court is the appropr iate forum for finding s of fac t. T E X . C O D E C R I M . P R O C . art. 11.07, § 3(d). The trial court shall o rd er ap pellate and trial counsel to respond to Applicant’s claims of ineffe ctive assistance of counsel. I n developing the rec ord, the trial court may

use any means set out in Article 11

. 0 7 , § 3 (d). I f the trial court elec ts to hold a hear ing, it shall deter mine whether Applicant is indige nt. I f Appl i ca nt is indige nt and wants to be repr esente d by counsel, the trial court shall appoint counsel to repr esent him at the hear ing. See T E X . C O D E C R I M . P R O C . art. 26.04. I f counsel is appointed or reta ined, the trial cour t s h al l i m m ediately notify this Court of counsel’ s name. T he trial court shall make finding s of fac t and conclusions of law as to whether ap p el l at e counsel’s perf

ormanc e was defic ien t an d Appl icant was prejudice d. The court shall also make finding s and conclusions as to whether trial counsel’s perf ormanc e was defic ient and Applicant was prejudice d. The trial court may make any other finding s and conclusions that it deems appropr iate in response to Applica

nt’s claim. T h e t rial court shall make findings of fac t and conclusions of l aw within ninety day s from the date of this order

. The district cler k shall then immediately forwa rd to this Court the trial court’s finding s and conclusions and the rec ord develope d on rema nd, including, among other things, aff idavits, motions, objections, propo sed finding s and conclusions, order s, and transcr ipts from3

hear ings and depositions. See T E X . R. A P P . P. 73.4(b)( 4). Any extensions of time must be reque sted by the trial cour

t and obtained f

rom this Court.

Filed: De cembe r 18, 2019 Do not publish