             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                         NO. WR-83,669-01


                      EX PARTE ANTHONY JOSEPH LARRY, Applicant


                  ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                     CAUSE NO. 5214 IN THE 8TH DISTRICT COURT
                              FROM RAINS 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 possession of

controlled substance and sentenced to sixty years’ imprisonment. The Twelfth Court of Appeals

affirmed his conviction. Larry v. State, No. 12-13-00072-CR (Tex. App.—Tyler May 30, 2014) (not

designated for publication).

        Applicant contends, among other things, that his trial counsel rendered ineffective assistance

because he misadvised Applicant of the likelihood of an acquittal and did not present mitigating

evidence at punishment.
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       Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington,

466 U.S. 668 (1984); Ex parte Argent, 393 S.W.3d 781, 784 (Tex. Crim. App. 2013). 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). 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 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 make specific findings addressing the advice

counsel gave Applicant with respect to any plea offers and the viability of a jury trial. If the trial

court finds that counsel erred in advising Applicant about any plea offers, the trial court shall also

make findings detailing whether there is a reasonable probability that: (1) he would have accepted

the offer; (2) the prosecution would not have withdrawn the offer; and (3) the trial court would not

have refused to accept the plea bargain. The trial court shall also make findings of fact addressing

Applicant’s claim that counsel was ineffective for not presenting mitigation testimony from

Applicant’s family members at the punishment phase of the trial. 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 claims for habeas corpus relief.
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       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 shall

be obtained from this Court.



Filed: October 7, 2015
Do not publish
