             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                         NO. WR-87,936-02


                  EX PARTE LADONDRELL MONTGOMERY, Applicant


                 ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                 CAUSE NO. 1328816-A IN THE 351ST DISTRICT COURT
                              FROM HARRIS COUNTY


        Per curiam. Newell, J. not participating.

                                              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

robbery and sentenced to forty-five years’ imprisonment. The Fourteenth Court of Appeals affirmed

his conviction. Montgomery v. State, No. 14-12-00939-CR (Tex. App. — Houston [14th Dist.] Aug

14, 2014) (not designated for publication).

        Applicant contends that his trial counsel rendered ineffective assistance for various reasons.



Applicant alleges that trial counsel failed to object or request that an instruction on the burden of
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proof with regard to extraneous offenses be included in the jury charge. He alleges that trial counsel

failed to timely object or request a mistrial when the enhancement allegations were not read and

Applicant was not asked to enter a plea to them before the presentation of punishment evidence.

Applicant alleges that trial counsel failed to investigate and present testimony from witnesses at the

punishment stage who were available and willing to provide mitigating testimony. Applicant also

alleges that trial counsel failed to advise him of the availability of a hearing pursuant to Theus v.

State, 845 S.W.2d 874 (Tex. Crim. App. 1992), to determine whether Applicant could testify without

impeachment using prior convictions.

       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. 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: July 25, 2018
Do not publish
