









IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. WR-65,404-01


EX PARTE TOMMY JEWEL SMITH, Applicant





ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 98-428286-A IN THE 137TH DISTRICT COURT

FROM LUBBOCK 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
and sentenced to ninety-nine years' imprisonment. The Seventh Court of Appeals affirmed his
conviction. Smith v. State, No. 07-99-00057-CR (Tex. App.-Amarillo, delivered August 19, 1999, 
no pet.). 
	Applicant contends that his trial counsel rendered ineffective assistance because he failed to
(1) argue self-defense and necessity; (2) investigate whether the complainant's injuries were from
a pre-existing condition; and (3) interview Diane Foster, Tommy Drake, Jeremy Penley, Anthony
Mayfield, Patrick Robinson, Carla Williamson, Kim Robinson, Tonya Lane, and a person named
Monty. 
	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 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 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: August 30, 2006
Do not publish
