









IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. WR-72,110-02


EX PARTE DAVID T. MCGARY, AKA DAVID SANDERS, Applicant





ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 4006 IN THE 46TH DISTRICT COURT

FROM HARDEMAN 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 possession of a
controlled substance and sentenced to ninety-nine years' imprisonment. The Seventh Court of
Appeals affirmed his conviction. McGary v. State, No. 07-07-00503-CR (Tex. App.-Amarillo, June
23, 2008, no pet.).
	Applicant contends that his appellate counsel rendered ineffective assistance because counsel
failed to advise him of his right to petition for discretionary review pro se. 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. Pursuant to 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 appellate counsel with the
opportunity to respond to Applicant's claim of ineffective assistance of counsel on appeal. 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 make findings of fact as to whether Applicant's appellate counsel timely
informed Applicant that he has a right to file a pro se petition for discretionary review. 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: August 19,2009
Do not publish
