## 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-27,316-03

EX P ARTE BOB BY RAY BURK S, JR., Appl icant

ON AP P LICATION FOR A WRIT OF HABEAS CORP US CAUSE NO. 10-691-K

277 IN THE 277 DISTRICT COURT T H F ROM WILLIAMSON COUNTY

Per curiam . Richardson , J. not part icipating. O R D E R Pursuant to the provision s o f Ar t i cle 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. 1967). Applica nt was convic ted of c apital murder and sentenc ed to life y ear s’ imprisonment. The Third Court of Appea ls aff irmed his conv i cti on. Burks v. State , No. 03-12-00181- CR (Tex. App.—Austi n Mar. 26, 2014)

. Applicant contends, among other things, that his trial counsel rende red ineffe ctive assistance by failing to investigate, failing to prese nt a defe nse, failing t o i n s t ru ct the jury on the term

acc omplice, and failing to challeng e cell phone rec ords. He also alleg es that appellate counsel was ineffe ctive for failing to perf ect the appea l, hav i n g a co n fl i ct of interest, and failing to include a2

g round of inef

fec tive trial counsel on a

ppeal. 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 and a

ppellate 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 the trial court elec ts to hold a hearing, it shall dete rmine whe ther Applica nt is indi g ent. I f Applicant is indige nt and wishes to be repr esente d by counsel, the t ri al court shall appoint an attorney to repre sent Applicant at the hearing. T E X . C O D E C R I M . P R O C . art. 26.04. The trial co u rt shall make finding s of fac t and conclusions of law as to whether the perf ormanc e of Applicant’s trial counsel was defic ient and, if so, wh et h er counsel’s defic ient perf ormanc e prejudice d Applicant. 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 for habea s corpus re lief. This application will be held in abeyance until the trial court has resolved the fac t issues. The issues sh al l b e re s o l ved within 90 day s of this order

. A supplemental transcript 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 t his order

. Any extensions of ti me must be re quested by

the trial cour

t and shall be obtaine d from this Court.3

Filed: June 13, 2018 Do not publish