              IN THE COURT OF CRIMINAL APPEALS
                          OF TEXAS
                                         NO. WR-88,489-01


                        EX PARTE JUSTIN DAVID SOBER, Applicant


                  ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                   CAUSE NO. 10400-A IN THE 31ST DISTRICT COURT
                               FROM GRAY 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 driving while

intoxicated and sentenced to twelve years’ imprisonment. He did not appeal his conviction.

        Applicant contends that his trial counsel rendered ineffective assistance because he did not

pursue a valid Fourth Amendment challenge in this case and then told Applicant that the issue had

been decided against him. Applicant alleges that, but for these errors, he would have insisted on a

jury trial.

        Applicant has alleged facts that, if true, might entitle him to relief. Ex parte Moody, 991
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S.W.2d 856, 857–58 (Tex. Crim. App. 1999); 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

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: July 25, 2018
Do not publish
