             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                         NO. WR-87,582-01


                       EX PARTE RODNEY EARL MILLER, Applicant


                 ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                 CAUSE NO. C-29,905-A IN THE 244th DISTRICT COURT
                              FROM ECTOR 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 indecency with

a child by contact and sentenced to fifteen years’ imprisonment. The Eleventh Court of Appeals

affirmed his conviction. Miller v. State, No. 11-11-00350-CR (Tex. App.—Eastland Oct. 10, 2013)

(not designated for publication).

        Applicant contends that his trial counsel rendered ineffective assistance because he failed to

explain the consequences of pleading guilty in exchange for deferred adjudication, prepare a defense,

investigate facts and leads, investigate the results of a sexual assault test kit, interview the victim,
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and investigate witness reports and statements.

       Applicant also alleges he is actually innocent. Specifically, Applicant states that subsequent

tests, conducted as part of a hearing pursuant to Chapter 64 of the Code of Criminal Procedure,

exclude him as the perpetrator in this case.

       Applicant also alleges that the State withheld material and exculpatory evidence prior to the

entrance of his plea of guilty.

       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); Ex parte

Tuley, 109 S.W.3d 388 (Tex. Crim. App. 2002); Brady v. Maryland, 373 US 83 (1963). 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 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 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 findings of fact and conclusions

of law as to whether subsequent DNA testing shows that Applicant is actually innocent of

committing the offense in this case. The trial court shall also make findings of fact and conclusions
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of law as to whether the State withheld material and exculpatory evidence in this case. 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 must

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



Filed: November 15, 2017
Do not publish
