









IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. WR-66,916-03


EX PARTE DAVID JONES, JR., Applicant





ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 2003-964-C IN THE 54TH DISTRICT COURT

FROM MCLENNAN 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 attempted
burglary of a habitation and sentenced to seventy years' imprisonment. The Tenth Court of Appeals
affirmed his conviction. Jones v. State, No. 10-04-00044-CR (Tex. App.-Waco, July 20, 2005, pet.
ref'd). 
	Applicant contends that his trial counsel rendered ineffective assistance because he failed to
request a lesser included offense instruction on "attempted criminal trespass" and to object to the
burglary instruction in the jury charge and to the trial court's response to the jury that Jeremy Cooper
had not testified at trial.  
	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. 1960), the trial court is the appropriate forum for findings of fact. The trial court
shall provide Applicant's trial counsel with the opportunity to respond to Applicant's claims 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 him at the hearing. Tex. Code Crim. Proc. art. 26.04. 
	The trial court shall then make findings of fact as to whether the performance of Applicant's
trial counsel was deficient and, if so, whether counsel's deficient performance prejudiced Applicant. 
The trial court shall specifically make findings of fact as to whether the jury charge included
instructions on burglary and, if so, why counsel failed to object. 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 claims 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. The jury instructions shall also
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: February 4, 2009
Do not publish
