## 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-94,095-01

EX P ARTE NATHANIEL JOH N MAR TINEZ, Applicant

ON AP P LICATION FOR A WRIT OF HABEAS CORP US CAUSE NO. 758512-A IN THE 248TH DIS TRICT COURT

F ROM HARRIS COUNTY

Per curiam . Y E A R Y , J ., filed a c oncurr ing opinion in which S L A U G H T E R , J ., joined. N E W E L L , J ., concur

red. O R D E R Applicant wa s convicted of murder a nd sentenc ed to six ty

y ear s’ imprisonment. The F irst Court of Appea ls aff

irmed his conviction. Martinez v. State , 16 S.W .3d 845 (Tex. App.—Houston [1 Dist.] 2000). Applicant filed this application for a writ of habea s corpus i n the county of st conviction, and the district cler k forwa rded it to this Court. See T E X . C O D E C R I M . P R O C . art. 11.07. This appl i ca t i o n was file-stampe d in Har ris County on Fe bruar

y 11, 2013. An order desig nating issues was signe d by the trial judge on May 14, 2013. This application was not rec eived by this Court until Aug ust 29, 2022. There is no indication in the recor d of any action by the t rial
court afte r the order des i gn at i n g issues was signe d. Nor is there any indication as to why this2

application was pending in Har ris County for so long witho u t an y ac t ion by the cler k or the trial
court. Applicant contends, among o th e r th in g s , th a t tr ia l c o u n s e l w a s in e f

f e c ti v e f o r various rea sons. Applicant has a lleg ed fa cts that, if true, mig ht entitle him to relief. Strickland v. W ashington , 466 U.S. 66 8 (1 9 8 4 ). Acc ording ly , the record should be developed. The trial court is the appropriate forum for finding s of fa ct. T E X . C O D E C R I M . P R O C . art. 11.07, § 3(d)

. As a pre liminary

matter, the trial court shall make f indings of f

act a s to why

no action wa s taken by the trial court or th e cl er k b et we en the entry of the order desig nating issues and the forwa rding of the a

pplication to this C ourt. The trial court shall obtain a response from Applicant

as to whether Applicant still wants to pursue this application, and shall include that response in the supplemental rec ord. I f the trial court is una ble to obta in suc h a response from Applicant, the trial
court shall detail the eff

orts that wer e made to obtain a response from Applicant. The trial court shall then re turn the applica tion to thi s Court. I f Applicant indicates that he does want to pursue this application, the trial court shall order trial counsel to respond to Applicant’s claims. I n developing the rec ord, the trial court may use any means set out in Article 11.07, § 3(d). I f the trial c ourt elec ts to hold a hearing , it shall deter mine whether Applicant is indige nt. I f Applicant is indige nt and wants to be repr esente d by counsel, the trial court shall appoint counsel to repr esent him at the hear ing. See T E X . C O D E C R I M . P R O C . art. 26.04. I f counsel i s ap p o i n t ed or reta ined, the trial court shall immediately notify this Court of counsel’s na

me. The trial court shall make finding s of fac t and conclusions of law as to whether trial counsel’s perf orman ce wa s d ef

icient and Applicant was prejudice d. The trial court may make any other3

finding s and conc lusions that it deems a ppropriate in response to Applica nt’s claims. The trial court shall make findings of fa ct and conclusions of l aw within ninety day s from the date of this order

. The district cler k shall then immediately forwa rd to this Court the trial court’s finding s and conclusions and the rec ord develope d on rema nd, including, among other things, aff idavits, motions, objections, proposed finding s and con clusions, order s, and transcr ipts from hear ings and depositions. See T E X . R. A P P . P. 73.4(b)( 4). Any extensions of time must be reque sted by the trial cour

t and obtained f

rom this Court.

Filed: Nove mber 23, 2022 Do not publish