## 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-85,261-02

EX P ARTE CHRISTO P HER CODY MCD ONOUGH, Applicant

ON AP P LICATION FOR A WRIT OF HABEAS CORP US CAUSE NO. CR23654-A IN THE 35 DISTRICT COURT T H F ROM BROWN 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. 1967). Applicant was convicted of possession of a controlled substanc e in a drug fre e zone a nd sentenc ed to f

ifteen year s’ imprisonment. He did not appea l his conviction. Applicant contends, among other things, that his trial counsel rende red ineffe ctive assistance beca use counse l did not investi g ate whe ther the c rime occ urre d in a drugfre e zone. 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). The habea s2

court has made finding s based on counsel’s af fi davit in a companion case . Howeve r, counsel’s aff idavit in the companion case does not addre ss the unique fac ts in this case . In these circ umstances, additional fac ts are neede d. As we he ld in Ex parte Rodriguez , 334 S.W .2d 294, 294 (Tex. Crim. App. 1960), the tria l court is the appr opriate f orum for f

indings of f

act. The trial court sha ll order trial counsel to respond to Applicant’s claim 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 whether Applican t is indige nt. I f Applicant is indige nt and wi s h es 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 make fi n d i ng s of fac t and conclusions of law as to whether the perf ormanc e of Appl i ca n t ’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 m ake specific finding s of fac t deter mining the location of this offe nse and the distance betwee n wher e the offe nse occur red and the drug fre e z one allege d in the i ndictment. The trial court shall also make any oth er findings 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 this order. A s up p l em ental 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 forwar ded to this Court within 120 day s of t he date of this order. Any extensions of ti me shall be obtained f

rom this Court.3

Filed: F ebrua

ry 1, 2017 Do not publish