             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                         NO. WR-86,116-01


                             EX PARTE DEJUAN SIMS, Applicant


                ON APPLICATION FOR A WRIT OF HABEAS CORPUS
              CAUSE NO. W10-00789-S(A) IN THE 282ND DISTRICT COURT
                             FROM DALLAS COUNTY


        Per curiam. A LCALA, J., dissenting.

                                              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 burglary of a

habitation with intent to commit other felony and sentenced to twenty-three years’ imprisonment.

The Fifth Court of Appeals affirmed his conviction. Sims v. State, No. 05-10-01312-CR (Tex.

App.—Dallas June 21, 2012)(not designated for publication).

        Applicant contends that his trial counsel rendered ineffective assistance because counsel was

deficient for failing to investigate, interview, and call his brother, Jacky Sims, to testify. Applicant
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alleges that Jacky was an eyewitness to the events and could have testified to the benefit of the

defense. Applicant also alleges that the State indicted Applicant three times, but counsel failed to

object to the indictments as improperly amended for failing to comply with Articles 28.10 and 28.11

of the Code of Criminal Procedure.

       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 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).

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

be requested by the trial court and shall be obtained from this Court.


Filed: January 11, 2017
Do not publish
