IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-81,481-01
EX PARTE KIMOTHY MARK TAYLOR, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. W09-01454-X(A) IN CRIMINAL DISTRICT COURT NO. 6
FROM DALLAS 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 murder and
sentenced to ten years’ imprisonment. The Fifth Court of Appeals affirmed his conviction. Taylor
v. State, No. 05-11-00043-CR (Tex. App.—Dallas March 28, 2012) (not designated for publication).
Applicant contends that trial counsel rendered ineffective assistance because, among other
things, he failed to call alibi witnesses at the guilt stage of trial and request that gunshot residue from
the deceased’s clothing be tested. On July 23, 2014, we remanded this application and directed the
trial court to make findings of fact and conclusions of law and order counsel to respond to
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Applicant’s claims. On remand, counsel filed a sworn affidavit and said, among other things, that
he retained a gunshot-residue expert. He did not, however, say why he did not request that the
gunshot residue from the deceased’s clothing be tested.
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 specific claim. 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 him at the hearing. TEX . CODE CRIM . PROC. art. 26.04.
After reviewing counsel’s second response, the trial court shall make further findings of fact
and conclusions of law as to whether trial counsel’s conduct was deficient and Applicant was
prejudiced. 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.
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.
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Filed: January 28, 2015
Do not publish