









IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. WR-76,151-01


EX PARTE JODY WAYNE ELLIOTT, Applicant





ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. CR07-00346 IN THE 294th DISTRICT COURT

FROM VAN ZANDT 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 sexual assault
of a child and sentenced to fifteen years' imprisonment.  He did not appeal his conviction.
	Applicant contends that his trial counsel rendered ineffective assistance because counsel
erroneously admonished him, prior to his plea of guilty and placement on deferred adjudication, that
the most punishment he could receive was ten years' imprisonment .  The Applicant alleges that, if
counsel had properly advised him that he faced the entire punishment range at any subsequent
motion to adjudicate, he would have insisted on going to trial. 
	The Applicant also contends that counsel was ineffective for failing to investigate and
discover a pre-trial affidavit filed by the complainant  where she stated that Applicant did not commit
this offense.   The Applicant further alleges that the State failed to turn this evidence over to the
defense in violation of Brady v. Maryland, 373 U.S. 83 (1963). 
	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 findings of fact as to whether the State failed to turn over material,
exculpatory evidence to the defense prior to trial.  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 24, 2011
Do not publish
