             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                         NO. WR-82,028-01


                         EX PARTE JONATHAN BARNES, Applicant


                  ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                  CAUSE NO. 2003-110A IN THE 274th DISTRICT COURT
                             FROM CALDWELL 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 two counts

aggravated sexual assault of a child and sentenced to ninety-nine years’ imprisonment on each

count.1 The Third Court of Appeals affirmed his conviction. Barnes v. State, No. 03-04-00059-CR

(Tex. App.—Austin, delivered April 7, 2005, no pet.).

        Applicant contends, inter alia, that his appellate counsel rendered ineffective assistance


        1
         Applicant was originally convicted on three counts. However, one of the three counts
was set aside by the 3rd Court of Appeals because it violated double jeopardy.
                                                                                                      2

because he failed to raise two preserved grounds of error on direct appeal. The Applicant also

alleges that appellate counsel deprived him of his right to file a pro se petition for discretionary

review when he falsely promised him he would file a petition on his behalf.

       Applicant has alleged facts that, if true, might entitle him to relief. Smith v. Robbins, 528

U.S. 259, 285-86 (2000); Strickland v. Washington, 466 U.S. 668 (1984). 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

appellate 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).

       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 appellate 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
                               3

be obtained from this Court.



Filed: September 17, 2014
Do not publish
