EX PARTE ERNEST EDWARD GAINES (other)

OF TEXAS

NO. WR-43,178-06

EX PARTE ERNEST EDWARD GAINES, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. W05-5657-S(A) IN THE 282nd DISTRICT COURT

FROM DALLAS COUNTY

Per curiam.

O R D E R

Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the clerk of the trial court transmitted to this Court this application for writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of aggravated robbery and sentenced to life imprisonment. The Fifth Court of Appeals affirmed his conviction. Gaines v. State, No. 5-06-00599-CR (Tex. App. Dallas, delivered June 27, 2007, pet. ref d).

Applicant contends, inter alia, that his trial counsel rendered ineffective assistance because he failed to investigate the facts of this case, interview witnesses, put the State s case to an adversarial testing, and raise the issue of Applicant s incompetency to stand trial. The Applicant also alleges that he was incompetent to stand trial.

The record reflects that the State entered a response requesting these issues be designated for resolution by the trial court. However, it also appears from the record that no order designating issues was ever entered by the trial court and this application has been forwarded to us without the factual basis of Applicant s claims having been resolved.

Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 608 (1984); Ex parte Lemke, 13 S.W.3d 791,795-96 (Tex. Crim. App. 2000). In these circumstances, additional facts are needed. As we held in Ex parte Rodriguez, 334 S.W.2d 294, 294 (Tex. Crim. App. 1960), the trial court is the appropriate forum for findings of fact. The trial court shall order Applicant s trial counsel to file an affidavit responding to Applicant s claims. The trial court may use any means set out in Tex. Code Crim. Proc. art. 11.07, 3(d).

If the trial court elects to hold a hearing, it shall determine whether Applicant is indigent. If Applicant is indigent and wishes to be represented by counsel, the trial court shall appoint an attorney to represent Applicant at the hearing. Tex. Code Crim. Proc. art. 26.04.

The trial court shall make findings of fact as to whether the performance of Applicant s trial attorney was deficient and, if so, whether counsel s deficient performance prejudiced Applicant. The trial court shall also make findings of fact as to whether the Applicant was competent to stand trial. The trial court shall also make any other findings of fact and conclusions of law that it deems relevant and appropriate to the disposition of Applicant s claim for habeas corpus relief.

This application will be held in abeyance until the trial court has resolved the fact issues. The issues shall be resolved within 60 days of this order. If any continuances are granted, a copy of the order granting the continuance shall be sent to this Court. A supplemental transcript containing all affidavits and interrogatories or the transcription of the court reporter s notes from any hearing or deposition, along with the trial court s supplemental findings of fact and conclusions of law, shall be returned to this Court within 90 days of the date of this order. Any extensions of time shall be obtained from this Court.

Filed: March 31, 2010

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