IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-83,063-01
EX PARTE DEAN R. CUNNINGHAM, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 19147 IN THE 2ND DISTRICT COURT
FROM CHEROKEE 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 failure to register
as a sex offender and sentenced to seven years’ imprisonment. The Twelfth Court of Appeals
dismissed his appeal for lack of jurisdiction. Cunningham v. State, 12-14-00120-CR (Tex.
App.—Tyler June 25, 2014).
Applicant contends that his trial counsel rendered ineffective assistance because he failed to
investigate and discover that Applicant’s duty to register had expired prior to the date he was alleged
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to have failed to register.
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).
It appears that Applicant is represented by counsel. If the trial court elects to hold a hearing,
it shall determine if Applicant is represented by counsel, and if not, 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 as to whether Applicant’s duty to register as a sex offender
expired prior to the alleged offense date in this cause. 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 shall
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be obtained from this Court.
Filed: April 29, 2015
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