## 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-82,072-01

EX P ARTE KENNETH LASHO N G REEN, Appl icant

ON AP P LICATION FOR A WRIT OF HABEAS CORP US CAUSE NO. CR38038 IN THE 385TH DISTRICT COURT

F ROM MID LAND 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 (Tex. Crim. App. 1 9 6 7 ). Ap p licant was convicted of two counts of sexual assault and sentenc ed to four y ear s’ imprisonment for eac h count, to run consec utively

. The Eleventh Court of Appea ls aff irmed his conviction. Gree n v. State , No. 11-11-00276- CR (Tex. App.

– Eastland, Aug us t 30, 2013). This Court subsequently dismiss ed Applicant’s petition for discretionar

y revie w (“ PDR”) as untimely filed. Applicant contends, among other things, that his trial counsel and appellate counsel both rende red ineffe ctive assistance rela ting t o t h e cumulation of his sentenc es. Pointi ng out that the2

complainant in both counts of the indictment was over the ag e of 17, Applicant alleg es that the trial court did not have the authority to cumulate the se ntence s in the two counts, which arose from the

same criminal episode and wer e p ro s ec u t ed in a single proce eding

. See T E X . P E N . C O D E §3.03. Applicant alleg es that trial counsel was ineffe ctive for failing to object to the cumulation order , and that appellate counsel was ineffe ctive for failing to raise the improperly cumulation on direc t appea l. Applicant also alleg es that this Court err oneously di s m issed his PDR as untimely filed. Applicant alleg es that he place d his pro se PDR i n t h e p ri s o n m ail sy stem befor e the due date of Dec ember 2, 2013, and that this Court rec eived the PDR within ten day s of the due date. Citi ng the application of the “prisoner mailbox rule,” Applicant alleg es that his PDR was timely filed. See T E X . R. A P P . P R O C . 9.2(b); Taylor v. State , 424 S.W .3d 39, 44 (Tex. Crim App. 2014). 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 and appellate counsel to respond to Appli ca n t ’s cl aim s of ineffe ctive assistance of counsel. Trial counsel shall state why he did n o t object to the cumulation of the

s en t en ce s fo r the two counts in this case . Appellate counsel shall state why he did not raise t h e improper cumulation issue on direct appeal. I n addition, the t rial court shall order the s upervisor of the prison mail unit to which Applicant was assig ned during the rele vant period to file an aff idavit stating the date upon which Applicant’s pro se PDR was place d into the pris o n m ail sy stem, and stating whether it was proper ly addre ssed. 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 n the appropr iate case , the trial court may rely on its persona l3

rec ollection. Id

. I f the trial court e lects to hold a hea ring , it shall determine whe ther Applica nt is indig ent. I f Applicant is indige nt an d wi shes to be repr esente d by counsel, the trial court shall appoint 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 shall m ak e fi ndings of fac t and conclusions of law as to whether the perf ormanc e of Applicant’s trial counse l was def icient and, if so, whe ther trial c ounsel’s def icient perf ormanc e prejudice d App l i ca n t

. The trial court shall make finding s as to whether the perf ormanc e of Applicant’s appellate counsel was defic ient, and, if so, whether appellate counsel’s defic ient perf

ormanc e prejudice d Applicant. The trial court shall also make finding s as to the date upon which Applicant’s pro se PDR wa s place d into the prison mail sy stem, and as to whether the PDR was proper ly addre ssed. The trial court shall al s o make any other finding s of fac t and conclusions of law that it deems relevant and appropr iate to the di sposition of Appli cant’ s cl ai m s 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. The issues shall be re s o l v ed wi t h in 90 day s of this order

. A supplemental 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 the date of this order. Any extensions of t ime shall be obtained f

rom this Court.

Filed: Oc tober 1, 2014 Do not publish