IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-85,217-02
EX PARTE ALBERT CLOYD PAYTEN, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 55781-C-2 IN THE 89TH DISTRICT COURT
FROM WICHITA 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 of
aggravated robbery and sentenced to fifteen years’ imprisonment on each count. He did not appeal
his convictions.
Applicant contends, among other things, that trial counsel failed to investigate and present
a “non-prosecution statement.” 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
2
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 the above 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 response, the trial court shall make findings of fact and conclusions
of law as to whether counsel’s conduct was deficient and, if so, Applicant would have insisted on
a trial and pleaded not guilty but for counsel’s deficient conduct. 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 must
be requested by the trial court and shall be obtained from this Court.
Filed: October 5, 2016
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