              IN THE COURT OF CRIMINAL APPEALS
                          OF TEXAS
                                         NO. WR-75,582-03


                         EX PARTE DAVID M. DONOVAN, Applicant


                  ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                  CAUSE NO. 756982-B IN THE 184TH DISTRICT COURT
                              FROM HARRIS COUNTY


        Per curiam. ALCALA , J., not participating.

                                              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 sexual

assault and sentenced to forty-five years’ imprisonment. The First Court of Appeals affirmed his

conviction. Donovan v. State, No. 01-05-00946-CR (Tex. App.—Houston [1st Dist.] May 17, 2007).

        Applicant contends, among other things, that plea counsel rendered ineffective assistance.

After counsel responded in a sworn affidavit, the trial court made findings of fact and conclusions

of law and recommended that we deny relief. We believe that the record should be further developed
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to determine whether plea counsel was ineffective.

        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

(Tex. Crim. App. 1960), the trial court is the appropriate forum for findings of fact. The trial court

shall hold a live evidentiary hearing.

        The trial court shall determine whether Applicant is indigent. If he 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 make further findings of fact and conclusions of law as to whether the

statements in plea counsel’s affidavit are credible, his conduct was deficient, and Applicant would

have insisted on a trial but for his alleged deficient conduct. Hill v. Lockhart, 474 U.S. 52 (1985).

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 that plea counsel was ineffective.

        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: November 4, 2015
Do not publish
