









IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. WR-67,494-02


EX PARTE ESMEREJILDO BALDERAS, Applicant





ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 5177-B IN THE 50TH DISTRICT COURT

FROM BAYLOR 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 writ of habeas corpus.  Ex parte
Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967).  Applicant was convicted of driving while
intoxicated and sentenced to five years' imprisonment.  He did not appeal his conviction.
	Applicant contends that his trial counsel rendered ineffective assistance because failed to
investigate properly.  Applicant alleges that he had neither been driving nor was intoxicated when the
trooper arrested him, and his companions would have verified this.  Applicant has alleged facts that,
if true, might entitle him to relief.  Strickland v. Washington, 466 U.S. 608 (1984); Ex parte Lemke,
13 S.W.3d 791,795-96 (Tex. Crim. App. 2000).  In these circumstances, additional facts are needed. 
As we held in Ex parte Rodriguez, 334 S.W.2d 294, 294 (Tex. Crim. App. 1997), the trial court is
the appropriate forum for making findings of fact.  The trial court shall provide Applicant's trial
counsel with the opportunity 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).  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 as to what evidence the State intended to present
to establish that Applicant had been driving and was intoxicated, and what investigation counsel
conducted to learn the State's evidence or to refute that evidence, including any interviews of
Applicant's companions or review of any videotape made by the arresting officer.  The court shall
then conclude whether the performance of Applicant's trial attorney 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.  If any continuances are granted, a copy of the
order granting the continuance shall be sent to this Court. 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
returned to this Court within 120 days of the date of this order.  Any extensions of time shall be
obtained from this Court. 


Filed: September 26, 2007
Do not publish
