             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                        NO. WR-78,538-03


                           EX PARTE MALVIN SADLER, Applicant


                ON APPLICATION FOR A WRIT OF HABEAS CORPUS
               CAUSE NO. 10-09-11,312-C IN THE 24TH DISTRICT COURT
                             FROM DEWITT COUNTY


       Per curiam.

                                             ORDER

       Applicant was convicted of unlawful possession of a firearm by a felon and sentenced to sixty

years’ imprisonment. The Thirteenth Court of Appeals affirmed his conviction. Sadler v. State, No.

13-10-00570-CR (Tex. App.—Corpus Christi-Edinburg Aug. 31, 2011) (not designated for

publication). 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 contends, among other things, that his trial counsel rendered ineffective assistance

because he did not object to use of the same conviction as both an element of the offense and as a

prior conviction for enhancement purposes. Ramirez v. State, 527 S.W.2d 542, 544 (Tex. Crim.
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App. 1986); Hernandez v. State, 929 S.W.2d 11, 13 (Tex. Crim. App. 1996).

       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. 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 and, if so, whether counsel’s deficient

performance prejudiced Applicant. In so doing, the court shall consider whether the State knew of

other prior felony convictions that were available to enhance Applicant’s punishment. Ex parte

Parrott, 396 S.W.3d 531 (Tex. Crim. App. 2013). 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
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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: June 13, 2018
Do not publish
