









IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. WR-61,580-05


EX PARTE DANNY DALE WEISINGER, SR., Applicant





ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 03-CR-035-C IN THE 349TH DISTRICT COURT

FROM HOUSTON 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 writ of habeas corpus.  Ex parte
Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967).  Applicant was convicted of aggravated
assault with a deadly weapon and sentenced to twenty years' imprisonment.  The Twelfth Court of
Appeals affirmed his conviction.  Weisinger v. State, No. 12-03-00274-CR (Tex. App. - Tyler,
January 12, 2004, pet. ref'd).
	Applicant contends, inter alia, that his trial counsel rendered ineffective assistance because
counsel failed to object to the admission of photographs that were more inflammatory than probative. 
Specifically, Applicant contends that photographs of the victim that were taken on the night of the
offense show that the victim is covered in blood and suggest that she was bleeding heavily from her 
wounds, but this blood was from a wound the victim had inflicted on Applicant and the victim's
medical records indicated that the victim did not have any open wounds.  Additionally, Applicant
contends that his trial counsel rendered ineffective assistance because counsel failed to impeach the
victim's testimony that she did not know how Applicant had obtained her telephone number and that
Applicant had been harassing her by calling her from jail, when Applicant had advised counsel that
administrators at the jail could testify, and tape recordings of the phone conversations would show,
that the victim had left her phone number with the administrators and requested that Applicant
contact her.
	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 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 as to whether the performance of Applicant's trial
attorney 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 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: February 6, 2008
Do not publish
