             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                         NO. WR-87,201-01


                     EX PARTE ALAA ABBAS ELKHAFAGE, Applicant


                 ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                 CAUSE NO. 1066700-A IN THE 339TH DISTRICT COURT
                              FROM HARRIS COUNTY


        Per curiam. ALCALA , J., filed a concurring opinion.

                                              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 life imprisonment. The Fourteenth Court of Appeals affirmed his

conviction. Elkhafage v. State, No. 14-07-00558-CR (Tex. App.—Houston [14th Dist.] Feb. 7, 2008)

(not designated for publication).

        Applicant contends, among other things, that he was incompetent. The trial court found that

he failed to show that he was incompetent. This finding was based on the docket sheet and the plea

papers. We believe that the trial court should make further findings of fact and conclusions of law

on whether Applicant was incompetent.
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       Applicant has alleged facts that, if true, might entitle him to relief. 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 may use any means set out in TEX . CODE CRIM .

PROC. art. 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 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.

       After reviewing Dr. Tom Gorsuch’s psychological evaluation of Applicant in the record,

particularly Gorsuch’s conclusion that Applicant was “currently functioning at the elementary school

level in all areas of learning,” the trial court shall make further findings and conclusions as to

whether Applicant was incompetent. The trial court shall also make any other findings and

conclusions 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 must be

requested by the trial court and shall be obtained from this Court.



Filed: October 18, 2017
Do not publish
