                IN THE COURT OF CRIMINAL APPEALS
                            OF TEXAS
                                         NO. WR-89,021-01


                        EX PARTE PHILLIP DWAYNE FORD, Applicant


                  ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                CAUSE NO. W09-56554-V (A) IN THE 292ND DISTRICT COURT
                               FROM DALLAS COUNTY


        Per curiam.

                                              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

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

conviction. Ford v. State, No. 05-11-00530-CR (Tex. App. — Dallas 2012) (not designated for

publication).

        Applicant contends, among other things,1 that his trial counsel rendered ineffective assistance



        1
            This Court has reviewed Applicant’s other claims and finds them to be without merit.
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because trial counsel failed to file a motion to suppress on the basis of an unlawful arrest, failed to

request jury instructions on necessity and self-defense, and did not allow Applicant to testify on his

own behalf.

       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 order trial counsel to respond to Applicant’s claims of ineffective assistance of counsel. Trial

counsel shall state whether he believed there was any basis upon which to file a pre-trial motion to

suppress, and if so, why he did not do so. Trial counsel shall state whether there was evidence that

Applicant acted out of necessity or self-defense, and if so, why he did not request instructions on

those defenses in the jury charge. Trial counsel shall state whether he advised Applicant that the

decision of whether or not to testify belonged to Applicant, and whether Applicant indicated a desire

to testify on his own behalf. 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
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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 must

be requested by the trial court and shall be obtained from this Court.



Filed: October 24, 2018
Do not publish
