## 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-87,795-01 & WR -87,795-03

EX P ARTE EVERET T CORNELIUS GRAY, Applicant

ON AP P LICATIONS FOR WRITS OF HABEAS CORP US CAUSE NOS. W15-71448-I(A) & W15-55801-I(A ) IN THE CRIMINAL DISTRICT COURT NO. 2

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 unlawful possession of a firea

rm by a felon and illega l barte r, expenditure, or investment. He was sentenc ed to ten and twenty

y ear s’ imprisonment, respec tively . He did not appe al his convictions. Applicant contends, among other things, that his trial counsel rende red ineffe ctive assistance beca use he misadvised Applicant about his eligi bility for community supervision, and because he

wr o n gly allowed Applicant to waive his appellate rig hts. The habea s court rec ommends g ranti n g2

Applicant an out-of-time appea l beca use his alleg edly timely notice of appea l was not forwa rded to the appe llate cour

t. 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). I n 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 tri al co u n s el to file a supplemental response to Applicant’s claims of ineffe ctive assistance of counsel. The tr i al 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 h old a hearing , it shall deter mine whether Applicant is indige nt. 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 hear ing. 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 prejudice d Applicant. The trial court shall make specific finding s addre ssing whether Applicant had a rig ht to appea l and, if so, whether he knowing ly waived his rig ht to appea l. The trial court shall also make specific finding s detailing how counsel advised Applicant of his elig ibilit y for community supervision in these cases. S hould the t rial court find that counsel erre d, it shall make further finding s as to whether Applicant’s pleas wer e involuntary

. 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 Applica

nt’s claims for ha

beas c orpus re lief. These applications will be held in abeyance until the trial court has resolved the fac t issues.3

The issues shall be resolved within 90 day s of this orde r. A supplemental transcr ipt c ontaining all aff idavits and int err og atories or the t ransc ription of t he court repor ter’s notes from any hear ing or deposition, along with 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. A ny extensions of t ime must be re quested by

the trial cour

t and shall be obtaine d from this Court.

Filed: September 12, 2018 Do not publish