            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                        NO. WR-90,802-01


                      EX PARTE ALAN EDWARD MILLER, Applicant


                 ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                CAUSE NO. D140297AR IN THE 260TH DISTRICT COURT
                             FROM ORANGE COUNTY


       Per curiam.

                                            ORDER

       Applicant was convicted of aggravated sexual assault of a child and sentenced to 25 years’

imprisonment. The Ninth Court of Appeals affirmed his conviction. Miller v. State, No. 09-15-

00287-CR (Tex. App.–Beaumont, May 10, 2017, pet. ref’d). 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 that trial counsel was ineffective because he failed to call an expert

witness to rebut the testimony of the State’s experts concerning the cause of the child’s injuries.

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
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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 claim. 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 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 in response to Applicant’s ineffective assistance

of counsel.

        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: February 26, 2020
Do not publish
