             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                         NO. WR-79,934-02


                             EX PARTE ROBERT CANO, Applicant


                  ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                 CAUSE NO. 11-3-25712-D-2 IN THE 377TH DISTRICT COURT
                               FROM VICTORIA 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 burglary of a

habitation and sentenced to thirty-five years’ imprisonment. The Thirteenth Court of Appeals

affirmed his conviction. Cano v. State, No. 13-11-00568-CR (Tex. App.—Corpus Christi-Edinburg

Dec. 6, 2012).

        Applicant contends that his trial counsel rendered ineffective assistance by misleading him

into believing that he would have a chance to testify on his own behalf.

        Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington,
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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 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).

       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 a determination as to whether Applicant wanted to testify on his

own behalf and if so, whether he communicated that desire to counsel. The trial court shall also

make a finding regarding whether counsel prevented Applicant from testifying on his own behalf at

trial. 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

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 shall

be obtained from this Court.
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Filed: July 27, 2016
Do not publish
