IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-82,028-01
EX PARTE JONATHAN BARNES, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 2003-110A IN THE 274th DISTRICT COURT
FROM CALDWELL 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 two counts
aggravated sexual assault of a child and sentenced to ninety-nine years’ imprisonment on each
count.1 The Third Court of Appeals affirmed his conviction. Barnes v. State, No. 03-04-00059-CR
(Tex. App.—Austin, delivered April 7, 2005, no pet.).
Applicant contends, inter alia, that his appellate counsel rendered ineffective assistance
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Applicant was originally convicted on three counts. However, one of the three counts
was set aside by the 3rd Court of Appeals because it violated double jeopardy.
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because he failed to raise two preserved grounds of error on direct appeal. The Applicant also
alleges that appellate counsel deprived him of his right to file a pro se petition for discretionary
review when he falsely promised him he would file a petition on his behalf.
Applicant has alleged facts that, if true, might entitle him to relief. Smith v. Robbins, 528
U.S. 259, 285-86 (2000); Strickland v. Washington, 466 U.S. 668 (1984). 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
appellate 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 appellate 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 shall
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be obtained from this Court.
Filed: September 17, 2014
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