









IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. WR-65,408-01


EX PARTE LUIS BENHUR ACUNA, Applicant





ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 9024193 IN THE 299TH DISTRICT COURT

FROM TRAVIS 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 sexual
assault and sentenced to life imprisonment.  The Third Court of Appeals affirmed his conviction.
Acuna v. State, No. 03-03-00203-CR (Tex. App. - Austin, December 2, 2004, pet. ref'd).
	Applicant contends that his trial counsel rendered ineffective assistance because he failed to
obtain an independent DNA test of material found on the complainant's panties in order to determine
whether it had been contaminated by a sample from a different case, and failed to request a limiting
instruction as to the jury's consideration of extraneous offense evidence.  Specifically, Applicant
asserts that a DNA test of material on the complainant's panties would have revealed the presence
of another complainant's DNA, thus demonstrating that the material had been contaminated by a
sample from a different case.  Applicant further asserts that counsel should have requested a limiting
instruction as to the jury's consideration of evidence that Applicant's DNA had been found in other
cases involving similar offenses.
	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. 1997), the trial court is the appropriate forum for findings of fact.  The trial court
shall provide Applicant's trial counsel with the opportunity 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 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 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.  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: September 20, 2006
Do not publish
