              IN THE COURT OF CRIMINAL APPEALS
                          OF TEXAS
                                         NO. WR-49,642-02


                      EX PARTE JOHN DAVID SHOCKLEY, Applicant


               ON APPLICATION FOR A WRIT OF HABEAS CORPUS
             CAUSE NO. W11-51734-T(A) IN THE 283RD DISTRICT COURT
                            FROM DALLAS 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 aggravated

robbery and sentenced to thirty-five years’ imprisonment. The Fifth Court of Appeals affirmed his

conviction. Shockley v. State, No. 05-12-00707-CR (Tex. App. — Dallas, October 16, 2013)(not

designated for publication).

        Applicant contends that his trial counsel rendered ineffective assistance because trial counsel

did not elicit testimony from Applicant himself during the guilt/innocence stage of trial to prove that
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the gun used by Applicant during the robbery was a plastic toy, and not a deadly weapon.

       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. On January 14,

2015, a timely order designating issues was signed by the trial court. The habeas record was then

properly forwarded to this Court pursuant to Tex. R. App. P. 73.4 (b)(5), but without the designated

issues being resolved by the trial court.1 We now remand this application to the 283rd Judicial

District Court of Dallas County to allow the trial judge to complete an evidentiary investigation and

enter findings of fact and conclusions of law.

       The trial court shall order trial counsel to respond to Applicant’s claim of ineffective

assistance of counsel. Specifically, trial counsel shall state whether or not he advised Applicant not

to testify on his own behalf at the guilt/innocence stage of trial, and if he did so advise Applicant,

what the specific reasons for this decision were. 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


       1
         Under Tex. R. App. P. 73.5, a trial court may request an extension of time to resolve
designated issues by filing a motion before the expiration of 180 days from the date of the receipt
of the application by the State.
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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.

Filed: September 16, 2015
Do not publish
