## 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-78,538-03

EX P ARTE MALVIN SADLER, Appli cant

ON AP P LICATION FOR A WRIT OF HABEAS CORP US CAUSE NO. 10-09-11,312-C IN THE 24 DISTRICT COURT T H F ROM DEWITT COUNTY

Per curiam . O R D E R Applicant was convicted of unla wful possession of a firea

rm by a felon and sentenc ed to six ty y ear s’ imprisonment. The Thirteenth Court of Appea ls aff irmed his conviction. Sadler v. State , No. 13-10-00570- CR (Tex. App.—Corpus Ch ri s t i -Edinburg Aug

. 31, 2011) (not designated for publication). Pursuant to the provisions of Article 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). Applicant contends, among other things, that his trial counsel rende red ineffe ctive assistance beca use he did not object to use of the sa me conviction as both a

n element of

the offe nse and as a p ri or conviction for enhanc ement purposes. Ramirez v. State , 527 S.W .2d 542, 544 (Tex. C ri m .2

App. 1986); Hernande

z v. State , 929 S.W .2d 11, 13 (Tex. Crim. App. 1996). 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 all order trial counsel to respond to Applicant’s claim of i neff ective assistance of counsel

. T h e 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). In the appropr iate ca se, the trial c ourt may rely on its personal re collection. Id

. I f the trial court elec ts to hold a he aring , it shall determine whe ther Applica nt is indi g ent. I f Applicant i s i ndige nt and wishes 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. T he trial court shall make finding s of fac t and conclusions of law as to wheth er t h e perf ormanc e of Applica n t ’s trial counsel was defic ient and, if so, whether counsel’s defic ient perf ormanc e pre

judiced Applica

nt. I n so doing, the court shall consider whether the State knew of other prior felony convi ct i o n s t h at wer e available to enhanc e Applicant’s punishment. Ex parte Parrott , 396 S.W .3d 531 (Tex. Crim. App. 2013). The trial court shall also make any other finding s of fac t and conclusions of law that it deems rele vant and appropriate to the dispositi on of Applicant’s claim for ha

beas c orpus 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 th i s o rd er . 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, shall3

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.

Filed: June 13, 2018 Do not publish