## 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-88,629-01

EX P ARTE DEON EARL S MITH, Appl icant

ON AP P LICATION FOR A WRIT OF HABEAS CORP US CAUSE NO. 17627-A IN THE 253RD DISTRICT COURT

F ROM CHAM BERS 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 . Crim. App. 1967). Applicant was convicted of sexual assault by a jury , and subsequently enter ed into a punishment plea in exchang e for a fiftee n-y ear sentenc e. He did not appe al his conviction. Applicant contends, among other things, that h is tria l c o u n s e l r e n d e red ineffe ctive assistance 1 beca use trial counsel failed to object to prosec utorial misconduct including the introduction of false

This Court has review ed Applica nt’s other c laims and finds them to be without merit. 12

or inadmissible evidenc e, the exclusion of jurors on the basis of rac e, ethnicity or sex, the failure to dis cl o s e ex cu l p atory evidenc e, and the making of threats to preve nt the testimony of witnesses. Applicant also alleg es that trial counsel failed to adequately cross-e x amine the complainant, failed to challeng e the State’s motion in limine , failed to move to suppress DNA evidenc e, fa i led to investigate Applicant’s mental health history , failed to call favor able witnesses, failed to prese nt evidenc e that the complain an t told a witness a month afte r the offe nse that the sex had been

consensua l, a

nd failed to strike a juror who had been Applicant’s high school coac h, despite being advised by

Applicant that he a

nd the juror kne w ea ch other and did not g et along

. 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 shall order trial counsel to r espond to A pplicant’s claims of ineffe ctive 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 t he trial court elects t o hold a hearing , it shall deter mine whet h er Applicant is indige nt. 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 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 court shall make finding s of fac t and conclusions of law as t o whether the perf ormanc e of Applicant’s t ri al counsel was defic ient and, if so, whether counsel’s defic ient perf ormanc e prejudice d Applicant. The trial court shall also make any other fin dings of fac t and conclusions of law that it deems relevant and appropr iate t o t h e dispositi on of Appli cant’ s claims for ha beas c orpus re lief.3

This application will be held in abeyance until the trial court has resolved the fac t issues. The issues shall be resolv ed wi t h i n 9 0 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 hearing or deposition, along with 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: Jul y

25, 2018 Do not publish