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 writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of aggravated assault with a deadly weapon and sentenced to forty years' imprisonment. The Tenth Court of Appeals affirmed his conviction. Doyle Sherman Ard v. State, No. 10-00-283-CR, (Tex. App.-Waco 2002).

Applicant raises numerous grounds in his application, including that his trial counsel rendered ineffective assistance by failing to investigate the crime scene, failing to employ expert witnesses, failing to file pretrial motions, informing the jury during voir dire and opening statements that Applicant had two prior convictions, playing for the jury a taped interview of Applicant with a reference of a prior assault conviction involving a weapon, and failing to allow Applicant to testify in his own defense.

Applicant also contends that his appellate counsel rendered ineffective assistance of counsel by failing to properly prepare and urge a motion for new trial.

Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 608 (1984); Ex parte Lemke, 13 S.W.3d 791,795-96 (Tex. Crim. App. 2000). Both trial and appellate counsel have filed affidavits in response to Applicant's allegations. However, this Court feels that the affidavits do not completely address the substance of Applicant's claims. In these circumstances, additional facts are needed. As we held in Ex parte Rodriguez, 334 S.W.2d 294, 294 (Tex. Crim. App. 1997), the trial court is the appropriate forum for findings of fact. 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 as to whether the performance of Applicant's trial attorney was deficient for failing to investigate the crime scene, failing to employ expert witnesses, failing to file pretrial motions, informing the jury during voir dire and opening statements that Applicant had two prior convictions, playing for the jury a taped interview of Applicant with a reference of a prior assault conviction involving a weapon, and failing to allow Applicant to testify in his own defense and, if so, whether counsel's deficient performance prejudiced Applicant. The trial court shall make findings of fact as to whether the performance of Applicant's appellate attorney was deficient for failing to properly prepare and urge a motion for new trial and failing to investigate possible juror misconduct 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. If any continuances are granted, a copy of the order granting the continuance shall be sent to this Court. 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 returned to this Court within 120 days of the date of this order. Any extensions of time shall be obtained from this Court.

Filed: November 15, 2006

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