## 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-86,022-01

EX P ARTE MARCU S EDWARD CLICK , Appli cant

ON AP P LICATION FOR A WRIT OF HABEAS CORP US CAUSE NO. W12270-1 IN THE 355 DISTRICT COURT T H F ROM HOOD 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 , 4 1 8 S

. W

. 2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of intox ication manslaug hter and, afte r his initial term of community supervision was revoke d, was sentenc ed to ten y ear s’ imprisonment. The Second Court of Appea ls aff irmed his conviction. Click v. State , No. 02- 14-00247-CR (Tex. App.—Ft. Worth Fe b. 27, 2015). Applicant contends that his t ri al counsel rende red ineffe ctive assistance by not fully investigating and prese nting the defe nse that Applicant was not driving at the time of the incident. Applicant alleg es that counse l had a witness statement and photos f rom the sce ne which te nded to2

show that Applicant was not driving , but he did not share that information with Applicant who could not reme mber the details of the incident. He also alleg es that counsel did not prese nt the defe nse that the offe nse o cc u rr ed within a private subdivision which was not open to the g ener al public and there fore the offe nse did not occur “in a public place ” as require d by T E X A S P E N A L C O D E Sec. 49.08. 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). In 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

s h al l o rd er trial counsel to 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 cour

t elects to hold a he aring , it shall determine whe ther Applica nt is indige nt. I t appea rs that Applicant is repr esente d by counsel. I f the trial court elec ts to hold a hear ing, it shall deter mine if Applicant is re p re s en t ed by counsel, and if not, whether Applicant is indige nt. I f Applicant is indige nt an d wi s h es to 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 c ourt shall make f indings of f

act a nd conclusions of lawas t o whether the photos and witness statement in question wer e exculpatory , whether counsel discussed that evidenc e with Applicant, and whether the defe nses App l icant outlines in his application wer e discussed with Applicant befor e his initial guilty plea. The trial court shall also make f indings re g ardingwhether 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 Appl icant. 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 for3

habea s corpus re lief. 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 this order

. A supplem en t al t ra n s cript 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, shall be for war ded to this Court withi n 120 day s of the date of this order. Any extensions of ti me must be re quested by

the trial cour

t and shall be obtaine d from this Court.

Filed: De cembe r 7, 2016 Do not publish