









IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. WR-12,297-05


EX PARTE VOLO AL NELSON, Applicant





ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 14315-B IN THE 104TH JUDICIAL DISTRICT COURT

FROM TAYLOR 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 possession of
heroin with intent to deliver and sentenced to thirty (30) years' imprisonment.  The Eleventh Court
of Appeals affirmed his conviction.  Nelson v. State, No. 11-03-00235-CR (Tex. App. - Eastland,
September 8, 2005).
	Applicant contends that his trial counsel rendered ineffective assistance because counsel
failed to interview Milton Burnes ("Burnes"), who owned the car where the heroin was found and
lived in the apartment identified by the affidavit in support of the search and arrest warrant, after
Applicant informed him that Burnes was willing to testify that the heroin was Burnes's.  Applicant
contends in addition that counsel failed to move for a speedy trial or to obtain a statement from
Burnes after Applicant informed him that Burnes was terminally ill, and that Burnes did die before
trial without having given a statement.
	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. 1997), 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: November 15, 2006
Do not publish
