## 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 NOS. WR-89,123-01 AND WR-89,123-02

EX P ARTE DANIEL ALBE RTO MONTOYA, Appli cant

ON AP P LICATION FOR A WRIT OF HABEAS CORP US CAUSE NOS. W14-31191-R(A) AND W14- 31192-R(A) IN THE 265T H DISTRICT COURT F ROM DALLAS COUNTY

Per curiam . O R D E R Pursuant to the provisions of Article 11.07 of the Tex as C o d e o f Criminal Procedur e, the cl er k o f the trial court transmitted to this Court these applications for writs of habea s corp u s . E x parte Y oung , 418 S.W .2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of two charg es of ag gravated sexual assault of a child and sentenc ed to sevente en year s’ impri s o n m ent for eac h charg e, to run consec utively

. The Fifth Court of Appea ls aff irmed his convictions. Mon t o ya v. State , Nos. 05-16-00756- CR and 05-16-00757- CR (Tex. App. — Dallas, 2017) (not designated for publication). Applicant contends that his trial counsel rende red ine ffe ctive assistance beca use trial counsel2

failed to investiga

te, failed to interview and call witnesses, failed to secur e an expert witness, failed to obtain a hearing and a ruling on the defe nse motion to sever the case s, failed to object to testimony and evidenc e, failed to prese nt mitigating evi d ence , and failed to prese nt “a substantive closing argument.” T h ese applications were filed in the di strict court on August 24, 2018. On t he application forms, Applicant makes ref ere nce to a brief in support of the applications and aff idavits from potential witnesses, which wer e not filed with the applications but wer e “forthcoming .” T he trial

co u rt d id not designate issues for resolution, and the applications were properly forwa rded to t h i s Court when 35 day s had passed from the date upon which th e S t ate rec eived service of the applications. On October 31, 2018, this Court rec eived notice from Applicant that th e brief and exhibi ts in s up p o rt o f these applications wer e filed in the trial court On October 29, 2018. Those documents have not y et bee n forwa rded to this Court. Although the filing of a habea s application without supportin g documents is strong ly discourag ed, this Court did rec eive notice of the filing of the brief and exhibi ts befor e disposing of the application s as t h ey were receive d, without sufficie nt fac ts or l aw to show that Applicant was entitled to relief

. Those documents would be helpful to this Court in addre ssing Applicant’s claims. Moreve r, the rec ords do not include an aff idavit from trial counsel, and the trial court has not enter ed finding s of fa ct and c onclusions of law. 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 appropriate forum for finding s of fac t. The trial court shall order trial counsel to respond to Applicant’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).3

In the appr opriate c ase, the trial court may rely on its personal re collection. 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 at the hearing. T E X . C O D E C R I M . P R O C . art. 26.04. The trial court shall first supplement the habea s rec ord with copies of Applicant’s brief and all supporting documents filed by Applicant in that court. The trial court 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, whether 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 ap p ro p ri at e to the dispositi on of Applica

nt’s claim for ha

beas c orpus re lief. These applications 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 orde r. A supplemental transcript c ontaining all aff idavits and int err og atories or the t ransc ription of the 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 5, 2018 Do not publish