                IN THE COURT OF CRIMINAL APPEALS
                            OF TEXAS
                                         NO. WR-85,538-01


                         EX PARTE BILLY JACK VERCHER, Applicant


                  ON APPLICATION FOR A WRIT OF HABEAS CORPUS
               CAUSE NO. C-12-0815-SB-W-1 IN THE 340TH DISTRICT COURT
                             FROM TOM GREEN COUNTY


        Per curiam. ALCALA , J., filed a concurring opinion.

                                              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 aggravated

robbery and sentenced to thirty years’ imprisonment. The Third Court of Appeals affirmed his

conviction. Vercher v. State, No. 03-13-00799-CR (Tex. App. — Austin, Oct. 7, 2015) (not

designated for publication).

        Applicant contends, among other things,1 that his trial counsel rendered ineffective assistance



        1
            This Court has considered Applicant’s other claims and finds them to be without merit.
                                                                                                      2

because counsel did not object or try to negotiate an immunity agreement when the prosecutor

threatened to prosecute defense witness and co-defendant Patrick Semple for enhanced aggravated

assault if he testified that he held Applicant at gunpoint to compel him to participate in the offense,

causing Semple to invoke his Fifth Amendment right against self-incrimination. Applicant also

alleges that trial counsel should have objected when the prosecutor stated that the State had pictures

of Applicant relaxing in the home of his co-defendant after the robbery, when no such pictures

existed. Applicant alleges that trial counsel should have objected when the prosecutor improperly

commented on Applicant’s failure to give a statement to police.

       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 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 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. 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
                                                                                                      3

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 must

be requested by the trial court and shall be obtained from this Court.

Filed: October 5, 2016
Do not publish
