









IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. WR-67,970-01


EX PARTE VINCENT PATRICK LUCIA, Applicant





ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. D030477AR IN THE 260TH JUDICIAL DISTRICT COURT

FROM ORANGE 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 capital murder and sentenced to
life imprisonment.  The Tenth Court of Appeals affirmed his conviction.  Lucia v. State, No. 10-04-00229-CR (Tex. App. - Waco, August 24, 2005, pet. ref'd).  
	Applicant contends, inter alia,  that his trial counsel rendered ineffective assistance because he
advised Applicant not to testify on his own behalf.  According to Applicant, he had no prior criminal history,
and was the only witness who could have testified to his version of the offense.  There is nothing in the
habeas record to support or refute Applicant's claim.

	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 counsel advised Applicant not to testify, and
if so, why.  The trial court shall also make findings as to whether there was evidence from another source
presented at trial to indicate that Applicant was present in the victim's home as an invitee rather than a
burglar at the time of the offense.  The trial court shall make findings 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: August 22, 2007
Do not publish
