               IN THE COURT OF CRIMINAL APPEALS
                           OF TEXAS
                                        NO. WR-90,720-01


                      EX PARTE CHARLES LEVI MORROW, Applicant


                   ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                  CAUSE NO. CR04410-A IN THE 394TH DISTRICT COURT
                             FROM BREWSTER COUNTY


       Per curiam.

                                             ORDER

       Applicant was convicted of murder and sentenced to fifty-five years’ imprisonment. The

Eighth Court of Appeals affirmed his conviction. Morrow v. State, No. 08-16-00040-CR (Tex. App.

— El Paso April 5, 2019) (not designated for publication). Applicant filed this application for a writ

of habeas corpus in the county of conviction, and the district clerk forwarded it to this Court. See

TEX . CODE CRIM . PROC. art. 11.07.

       Applicant contends, among other things,1 that trial counsel was ineffective because trial

counsel failed to object to the absence of a jury instruction applying defense of others to the murder



       1
           This Court has reviewed Applicant’s other claims and finds them to be without merit.
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charge, and for failing to object to the absence of an instruction on mistake of fact. Applicant also

alleges that trial counsel advised him that the defensive theory would be to present evidence of

sudden passion arising from adequate cause, but that trial counsel failed to elicit or present sufficient

evidence to support such a defense.

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

466 U.S. 668 (1984). Accordingly, the record should be developed. The trial court is the appropriate

forum for findings of fact. TEX . CODE CRIM . PROC. art. 11.07, § 3(d). The trial court shall order trial

counsel to respond to Applicant’s claims. Trial counsel shall state whether he believed that the

evidence supported instructions on defense of others as to the murder charge, and on mistake of fact,

and if so, why trial counsel did not object to the absence of such instructions in the jury charge. Trial

counsel shall state whether he advised Applicant that the defensive theory was to present an

affirmative defense of sudden passion arising from adequate cause, and if so, whether any evidence

existed to support such a theory. In developing the record, the trial court may use any means set out

in Article 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 wants to be represented by counsel, the trial court

shall appoint counsel to represent him at the hearing. See TEX . CODE CRIM . PROC. art. 26.04. If

counsel is appointed or retained, the trial court shall immediately notify this Court of counsel’s

name.

        The trial court shall first supplement the record with copies of the jury charges at the

guilt/innocence and punishment stages of trial. The trial court shall then make findings of fact and

conclusions of law as to whether trial counsel’s performance was deficient and Applicant was

prejudiced. The trial court may make any other findings and conclusions that it deems appropriate
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in response to Applicant’s claims.

        The trial court shall make findings of fact and conclusions of law within ninety days from

the date of this order. The district clerk shall then immediately forward to this Court the trial court’s

findings and conclusions and the record developed on remand, including, among other things,

affidavits, motions, objections, proposed findings and conclusions, orders, and transcripts from

hearings and depositions. See TEX . R. APP . P. 73.4(b)(4). Any extensions of time must be requested

by the trial court and obtained from this Court.



Filed: January 15, 2020
Do not publish
