









IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. WR-66,152-02


EX PARTE TOMMY LEE JOHNSON, Applicant
 



ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 9815 IN THE 32ND DISTRICT COURT

FROM NOLAN COUNTY




 Per curiam.
 O R D E R


	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 possession of a
controlled substance and sentenced to thirteen years' imprisonment. He did not appeal his
conviction.
	Applicant contends, among other things, that trial counsel rendered ineffective assistance
because he did not challenge the legality of the stop and search of Applicant's car. On September
10, 2008, we remanded this application and directed the trial court to provide Applicant's trial
counsel with the opportunity to respond to Applicant's claim of ineffective assistance of counsel. 
On remand, the trial court entered findings of fact and concluded that counsel's performance was not
deficient. But there is no indication from the record that counsel responded to Applicant's claim. We
believe that counsel should have the opportunity to respond. 
	Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington,
466 U.S. 608 (1984); Ex parte Lemke, 13 S.W.3d 791,795-96 (Tex. Crim. App. 2000). 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.
	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 him at the hearing. Tex. Code Crim. Proc. art. 26.04. 
	The trial court shall make findings of fact as to whether the performance of Applicant's trial
attorney was deficient and, if so, whether his 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. If any continuances are granted, a copy of the
order granting the continuance shall be sent to this Court. 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 returned to this Court within 120 days of the date of this order. Any extensions of time shall be
obtained from this Court. 

Filed: December 10, 2008
Do not publish
