## 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-76,252-02

EX P ARTE BRIAN SKOLNIK, A ppl icant

ON AP P LICATION FOR A WRIT OF HABEAS CORP US CAUSE NO. S-08-3093CR-HC- 2 IN THE 36T H DISTRICT COURT

F ROM SAN P ATRICIO COUNTY

Per curiam . A L C A L A , J., fi led a concurring opin ion in wh ich J O H N S O N and R I C H A R D S O N , JJ., joined. Y E A R Y , J., fi led a concurring opin ion in wh ich K E A S L E R and H E R V E Y , JJ., joined.

O R D E R Pursuant to the provisions o f Ar t i cl e 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 char g ed with murder. Whil e he orig inally pleade d “not g uilty ” and proce eded to trial by jury , immediately afte r the State rested he chang ed his plea to “g uilty .” Following a punishment trial, he was sentenc ed to forty y ear s’ imprisonment. The Thirteenth Court of Appea ls aff irmed his conviction. Skolnik v. State , No. 13- 09-00058-CR (Tex. App. — Corpus Christi–Edinburg, J uly 15, 2010) (not desig nated for2

publication). App li c a nt c o nte n d s , a

mo n g other things, that his trial counsel rende red ineffe ctive assistance 1 beca use counsel failed to prepa re a defe nsive strateg y , failed to make an opening statement, failed to prese nt any witnesses, failed to object to false testimony by the State’s witnesses, failed to reque st a mistrial when juror

misconduct came to light, advise d Applicant that there was no money to pa y for a defe nse expert witness, and coer ced Applicant into chang ing h i s p l ea af t er the State rested. Applicant also alleg es that his orig inal trial counsel, who develope d medical i s s u es and had to withdraw from the repr esentation failed to inform Applicant that he had terminal brain canc er, and advised Applicant to reje ct pre- trial plea offe rs, telling him that t h e ca s e could be won at trial beca use the State lac ked evide nce. 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 trial counsel to r espond to A pplicant’s claims of ineffe ctive 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 n the appropr iate ca se, the trial c ourt may rely on its personal re collection. Id

. I f the trial court elec ts to hold a hearing , it shall determine whe ther Applica nt is indi g ent. I f Applicant is indige nt and wishes to be repr esente d by counsel, the trial co u rt s hall 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 supplement the rec ord with a copy of the trial docke t or any other

This Court has considere d Applicant’s other claims and finds them to be w ithout merit. 13

documents showing when Applicant’s orig inal counsel withdrew from the repr esentation and when

a new attorney was appointed or reta ined. The trial court shall make finding s as to whether the State made any pre- trial plea offe rs, and if so, whether Applicant reje cted such offe rs on the rec ord or in writing

. The trial court shall then m ake f i n d i n gs o f fa ct and conclusions of l aw as to whether the perf ormanc e o f Ap p l icant’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 oth er 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 i s sues shall be resolved within 90 day s of this order

. A supplemental transcr ipt cont ai n i n g al l 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 forwar ded to t his Court withi n 120 day s of the date of this order

. Any extensions of t ime shall be obtained f

rom this Court. Filed: June 29, 2016 Do not publish