                 IN THE COURT OF CRIMINAL APPEALS
                             OF TEXAS
                                         NO. WR-81,430-02


                EX PARTE JAMARIOS LECHRISTOPHER CANTON, Applicant


                    ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                    CAUSE NO. F1017409 IN THE 145TH DISTRICT COURT
                            FROM NACOGDOCHES 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 aggravated

assault and sentenced to life imprisonment. The Twelfth Court of Appeals affirmed his conviction.

Canton v. State, No. 12-12-00118-CR (Tex. App. – Tyler, December 20, 2012).

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

because counsel failed to object to a defect in the indictment, failed to object to incorrect definitions



        1
            This Court has reviewed Applicant’s other claims and finds them to be without merit.
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of “reasonable doubt,” failed to object to irrelevant testimony, failed to file a motion to suppress

evidence or object to the State’s failure to establish a chain of custody for the evidence, failed to

object to improper statements by the prosecutor during closing arguments at both the guilt/innocence

and punishment stages of trial, and called a witness whose testimony was entirely unfavorable to the

defense. Applicant also alleges that, because he placed it in the prison mail system before the date

upon which it was due to be filed, his pro se petition for discretionary review was improperly

dismissed as untimely.

        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 shall also obtain an affidavit from the supervisor of the mail room on the unit in which

Applicant was held during the applicable period, stating the date upon which Applicant’s pro se

petition for discretionary review was placed into the prison mail system, whether it was properly

addressed to the clerk of this Court, and the date upon which it was sent to this Court. 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 the date upon which
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Applicant’s pro se petition for discretionary review was placed into the prison mail system, and as

to why this Court did not receive the petition until April 5, 2013. The trial court shall also 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 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: October 8, 2014
Do not publish
