             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                         NO. WR-82,815-01


                      EX PARTE CORDERRAL JOHN SMITH, Applicant


                 ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                CAUSE NO. CR28321-A IN THE 253RD DISTRICT COURT
                            FROM LIBERTY COUNTY


        Per curiam.

                                              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 capital murder

and sentenced to imprisonment for life. The Thirteenth Court of Appeals affirmed the judgment of

conviction. Smith v. State, No. 13-10-00552-CR (Tex. App.—Corpus Christi–Edinburg Apr. 12,

2012) (not designated for publication).

        Applicant contends, among other things, that trial and appellant counsel rendered ineffective

assistance. On March 4, 2015, we remanded this application so the trial court could complete its

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evidentiary investigation and make findings of fact and conclusions of law. On remand, the trial

court found that appellate counsel failed to comply with Ex parte Wilson, 956 S.W.2d 25 (Tex. Crim.

App. 1997). It recommended that we grant Applicant an out-of-time petition for discretionary

review. There is no response from appellate counsel in the record, however, and before being found

ineffective, counsel should ordinarily be given the opportunity to explain his conduct. Rylander v.

State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003). The trial court shall order appellate counsel

to respond. The trial court may use any means set out in TEX . CODE CRIM . PROC. art. 11.07, § 3(d).

       Applicant appears to be represented by counsel. If he is not and 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 further findings and conclusions as to whether appellate counsel

was deficient and Applicant was prejudiced. 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

be forwarded to this Court within 120 days of the date of this order. Any extensions of time shall

be obtained from this Court.


Filed: January 13, 2016
Do not publish
