             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                         NO. WR-73,752-02


                      EX PARTE COTY DEMOND GILFORD, Applicant


                  ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                  CAUSE NO. 945073-A IN THE 262ND DISTRICT COURT
                               FROM HARRIS COUNTY


     Per curiam. ALCALA , J., filed a concurring opinion in which JOHNSON and
RICHARDSON , JJ., joined. YEARY , J., filed a concurring opinion in which KEASLER and
HERVEY , JJ., joined.

                                              ORDER

        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

robbery and sentenced to thirty years’ imprisonment. The Fourteenth Court of Appeals affirmed

conviction. Gilford v. State, No. 14-03-00506-CR (Tex. App. — Houston [14th Dist.], February 19,

2004) (not designated for publication).
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       Applicant contends, among other things,1 that trial counsel rendered ineffective assistance

because counsel failed to investigate and argue that Applicant’s arrest was illegal, and that the

statement that Applicant gave while in custody was thus inadmissible. Applicant alleges that trial

counsel failed to object on the basis of denial of confrontation when the State elicited information

provided by non-testifying witnesses through the testimony of investigating officers at trial.

Applicant also alleges that the complainant and other witnesses failed to identify Applicant in pre-

trial photo lineups as the robber, and gave descriptions of the robber that did not match Applicant.

Applicant alleges that trial counsel should have impeached the complainant’s in-court identification

with his prior inconsistent statements and inability to identify Applicant. Applicant also alleges that

trial counsel should have investigated and secured the testimony of the other witnesses who did not

identify Applicant as the robber.

       The trial court entered an order designating issues in this case in 2007, and apparently

ordered Applicant’s trial counsel to provide an affidavit responding to Applicant’s allegations.

However, in 2016 the trial court entered findings of fact and conclusions of law, finding among other

things that after reviewing the record, the trial court was of the opinion that no affidavit from trial

counsel was necessary in order to address Applicant’s allegations. However, the habeas record does

not contain copies of the trial records that were reviewed by the trial court, and the trial court’s

findings of fact do not address all of Applicant’s allegations.

       Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington,

466 U.S. 668 (1984); Ex parte Patterson, 993 S.W.2d 114, 115 (Tex. Crim. App. 1999). In these

circumstances, additional facts are needed. As we held in Ex parte Rodriguez, 334 S.W.2d 294, 294


       1
           This Court has considered Applicant’s other claims and finds them to be without merit.
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(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 claims 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 Applicant at the hearing. TEX . CODE CRIM . PROC. art. 26.04.

       The trial court shall make findings of fact and conclusions of law as to whether the

performance of Applicant’s trial counsel 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 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 90 days of this order. 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 forwarded to this Court within 120 days of the date of this order. Any extensions of time shall

be obtained from this Court.



Filed: June 29, 2016
Do not publish
