              IN THE COURT OF CRIMINAL APPEALS
                          OF TEXAS
                                         NO. WR-83,063-01


                       EX PARTE DEAN R. CUNNINGHAM, Applicant


                  ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                    CAUSE NO. 19147 IN THE 2ND DISTRICT COURT
                            FROM CHEROKEE 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 failure to register

as a sex offender and sentenced to seven years’ imprisonment. The Twelfth Court of Appeals

dismissed his appeal for lack of jurisdiction. Cunningham v. State, 12-14-00120-CR (Tex.

App.—Tyler June 25, 2014).

        Applicant contends that his trial counsel rendered ineffective assistance because he failed to

investigate and discover that Applicant’s duty to register had expired prior to the date he was alleged
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to have failed to register.

        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 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).

        It appears that Applicant is represented by counsel. If the trial court elects to hold a hearing,

it shall determine if Applicant is represented by counsel, and if not, 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 as to whether Applicant’s duty to register as a sex offender

expired prior to the alleged offense date in this cause. 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
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be obtained from this Court.



Filed: April 29, 2015
Do not publish
