## 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-90,195-01

EX P ARTE JAVIER DUARTE, Applicant

ON AP P LICATION FOR A WRIT OF HABEAS CORP US CAUSE NO. 20160D02433 IN THE 120 DISTRICT COURT T H F ROM EL P ASO 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 pleade d guilty and was convicted of the manufa cture or delivery of a controlled substance and sentenc ed to ten y ear s’ imprisonment. He did not appe al his conviction. Applicant contends that his tria l c ounsel rende red ineffe ctive assistance by telling him that if motions wer e filed or if the defe nse challeng ed the char g es, the State would alleg e the punishment rang e as a habitual offe nder and he wou l d receive a mandatory life sentence. He also alleg es t hat counsel failed to investigate and lear n that th e p erson police named as the person who g ave them2

authorization to sear ch the residenc e did not have the authority to grant such permission and that the amount of drug s he possessed w as not sufficie nt to sustain a first deg ree felony char g e. 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). 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 re s p o n d to Applicant’s claim of i neff ective 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 Appl i ca nt is indige nt. I f Applicant i s i ndige nt and wishes to be repr esente d by 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. T he trial court shall make finding s of fac t and conclusions of law as to wheth er t h e perf ormanc e of Applica 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 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 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 this order. A s up p l em ental 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 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 the date of this order. Any extensions of ti me must be re quested by

the trial cour

t and shall be obtaine d from this Court.3

Filed: August 21, 2019 Do not publish