EX PARTE RICHARD MCBRAYER (other)

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-75,495-02

EX PARTE RICHARD MCBRAYER, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 1043288D IN THE 297TH DISTRICT COURT

FROM TARRANT 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 a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of aggravated assault on a public servant and sentenced to fifteen years' imprisonment. He did not appeal his conviction.

On August 17, 2009, the trial court amended the judgment and sentence in this cause and ordered that $6,875.00 in attorney's fees be added and paid by Applicant as court costs. In this order, the trial court also recommended that any unpaid amounts be added as a condition of Applicant's parole. Applicant contends that the trial court erred in entering this order because it failed to determine whether he could pay the attorney's fees. Applicant also contends that trial counsel failed to object to this order. The trial court made findings of fact and conclusions of law and recommended that we delete from the judgment the requirement that the attorney's fees be added and paid by Applicant as court costs. It also recommended that we add the trial court's recommendation to the judgment that Applicant pay the attorney's fees and court costs as a condition of his parole.

We believe that the record should be further developed. 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 trial counsel to respond to Applicant's claim of ineffective assistance of counsel. The trial court may use any means set out in Tex. Code Crim. Proc. art. 11.07, § 3(d). In the appropriate case, the trial court may rely on its personal recollection. Id.

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 him at the hearing. Tex. Code Crim. Proc. art. 26.04.

The trial court shall first make findings of fact as to when, if at all, Applicant and trial counsel received notice of the August 17 order. The trial court shall then make findings as to whether it would have granted Applicant permission to appeal had he and trial counsel received notice of the August 17 order. Finally, the trial court shall make findings and conclusions as to whether trial counsel's performance was deficient and, if so, whether counsel's deficient performance prejudiced Applicant. 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 claims 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 90 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 120 days of the date of this order. Any extensions of time shall be obtained from this Court.

Filed: August 24, 2011

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