











IN THE COURT OF CRIMINAL APPEALS
OF TEXAS



NO. WR-79,479-01




EX PARTE STANDRIDGE MARCELL SMITH, Applicant




ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 17427-B IN THE 104TH DISTRICT COURT
FROM TAYLOR 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 murder and
sentenced to twenty-five years’ imprisonment.  The Eleventh Court of Appeals affirmed his
conviction.  Smith v. State, No. 11-10-00171-CR (Tex. App. – Eastland, June 28, 2012, pet. ref’d).
            Applicant contends, inter alia,
 that his trial counsel rendered ineffective assistance because
counsel failed to request that the jury be instructed on the lesser-included offenses of manslaughter
and criminally negligent homicide.  
            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. 
Specifically, counsel shall state whether he considered requesting lesser-included offense
instructions, and why he did not request such instructions.  The trial court may use any means set out
in Tex. Code Crim. Proc. art. 11.07, § 3(d).  In the appropriate case, the trial court may rely on its
personal recollection.  Id.
            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 Applicant at the hearing.  Tex. Code Crim. Proc. art. 26.04. 
            The trial court shall make findings of fact and conclusions of law as to whether the
performance of Applicant’s trial counsel was deficient in failing to request lesser-included offense
instructions, 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
be obtained from this Court.
 
Filed: May 22, 2013
Do not publish
