## 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-83,961-01

EX P ARTE GERALD WAY NE JOHNSO N II, Appli cant

ON AP P LICATION FOR A WRIT OF HABEAS CORP US CAUSE NO. 2-14-122-AIN THE 439T H DISTRICT COURT

F ROM ROCK

WALL 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 eng ag ing in org anized criminal ac tivity and sente nced to eig hteen y ear s’ i mprisonment. He did not appe al his conviction. Applicant contends, among other things, that trial counsel allowed him to plead g uilty even though t h er e was no evidenc e of “org anized crime.” On November 4, 2015, we rema nded this application and dir ecte d the trial cour t to order c ounsel “to respond to Applicant’s c laim and state what evidenc e indicated that Applicant was g uilty of eng ag ing in or g anized criminal activity .” Ex2

parte Johnson , No. WR -83,961-01 (Tex. Crim. App. Nov. 4, 2015) (not desig nated for publication). On re mand, counse l filed a swor n aff idavit a nd discussed her repr esentation of Applicant. But counsel failed to respond to Applicant’s claim that she allowed him to plead g uilty even though there was no evidenc e of “org anized crime.” Acc ording ly , the trial court shall order counsel to file

a sec ond response

. 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 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 Ap p l icant is indige nt. I f Applicant is indige nt and wishes to be repr esente d by counsel, the trial court shall appo i n t an attorney to repre sent him at the hea ring . T E X . C O D E C R I M . P R O C . art. 26.04. After revie wing counsel’s respon s e, t h e trial court shall make further finding s of fac t and conclusions of law as to whether counsel’s conduct was defic ient and Applicant would have insisted

on a trial but for her alleg ed defic ient conduct. See Hill v

. Lockhart , 474 U.S. 52 (1985). The trial court shall also make any other finding s and conc lusions that it deems relevant and appropr iate to the disposition of Applicant’s claim for habea s corpus 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 transcr ipt containing 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, shall3

be forwar ded to this Court withi n 120 day s of the date of t his order

. Any extensions of t ime shall be obtained f

rom this Court.

Filed: Apr il 13, 2016 Do not publish