             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                         NO. WR-84,509-02


                      EX PARTE HOMER JAVIER AVALOS , Applicant


               ON APPLICATION FOR A WRIT OF HABEAS CORPUS
           CAUSE NO. 20120D06030-120-02 IN THE 120TH DISTRICT COURT
                            FROM EL PASO 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 sexual assault

and sentenced to seven years’ imprisonment. Applicant’s direct appeal was dismissed. Avalos v.

State, No. 08-15-00005-CR (Tex. Crim.—El Paso Nov. 4, 2015)(not designated for publication).

        Applicant contends that his trial counsel rendered ineffective assistance because: (1) counsel

denied Applicant the right to testify; (2) counsel refused to participate in plea negotiations with the

State; (3) counsel failed to put on a defense by failing to call witnesses, failing to introduce phone

records from the complainant to Applicant, failing to subpoena the hospital doctor to show that the
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complainant refused a rape kit examination, and failing to object to a pair of panties that were

submitted into evidence, even though they were never tested for DNA; and, (4) a conflict of interest

existed because, during counsel’s representation, counsel’s wife, who is Applicant’s daughter, filed

for divorce.

       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: December 7, 2016
Do not publish
