## 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-72,100-02

EX P ARTE JAMIE L. ST EWART, Appl icant

ON AP P LICATION FOR A WRIT OF HABEAS CORP US CAUSE NO. 12103A IN THE 21S T DIST RICT COURT

F ROM WASHING TON 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 attempted capital murder and sentenc ed to fifty y ear s’ imprisonment. His conviction was aff irmed by the Four

teenth Court of Appea ls in Stewart v. State , No. 14-97-00568- CR (Tex. App.—Houston [14t h Dist.] J une 3, 1999)(not designated f or publication). Applicant alleg es, among other things, that trial counsel rende red ineffe ctive assistance beca use counsel failed to inform Applicant that he had been indicted with new charg es, failed to visit Applicant or prepa

re Applicant for his second trial, failed to interview and call punishment2

witnesses, failed to object to the prosec utor’s improper qu es t i o n s that shifted the burden to the defe nse, and failed to object to the prosec utor’s closing arguments as a violation of the rig ht to confr ontation. Applicant has alleg ed fac ts that, if true, might entitle to relief

. Strickland v. W

ashington , 466 U.S. 668 (1984); Ex parte P a t t er s o n , 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 respond to Applicant’s claim of i neff ec t i v e 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 e lects to hold a hea ring , it shall determine whe ther Applica nt is indi g ent. I f Applicant is indige nt and wishes to be repr esente d b y 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 finding s of fac t and conclusions o f l aw as to whether the perf ormanc e of Applicant’s trial counsel was defic ient and, if so, whe t h er counsel’s defic ient perf ormanc e p re

j u d i ce d Applicant. The trial court shall also make finding s as to whether Applicant’s claims are barr ed by the equitable doctrine of lache s. The trial court shall also make 1 any other finding s of fac t and conclusions of law that it deems re l ev an t an d appropr iate to the dispositi on of Applica

nt’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

Be fore makingthis determination, the trial cour t shall give Applicant the oppor tunity to 1 respond a nd explain his delay

. See E x parte Smith , 444 S.W .3d 661, 670 (Tex. Crim. App. 2014) (“An applicant must be a ffor ded this opportunity —irrespe ctive of whether the State alleg es the delay disadvantag es its own position—before a court re commends or c oncludes that lac hes compels the a

pplication’s denial” ).3

issues shall be resolved within 90 day s of this order

. A supplemental tr an s cr i p t co n taining 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 this order. Any extensions of t ime must be re quested by

the trial cour

t and shall be obtaine d from this Court.

Filed: June 13, 2018 Do not publish