             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                         NO. WR-83,610-01


                          EX PARTE LEONARD WAFER, Applicant


                    ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                    CAUSE NO. 31,328-CR IN THE 13TH DISTRICT COURT
                               FROM NAVARRO COUNTY


     Per curiam. ALCALA , J., filed a concurring opinion in which JOHNSON and
RICHARDSON , JJ., joined. YEARY , J., filed a concurring opinion in which KEASLER and
HERVEY , JJ., joined.


                                              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 aggravated

kidnapping and sentenced to thirty years’ imprisonment. The Tenth Court of Appeals affirmed his

conviction. Wafer v. State, No. 10-07-00367-CR (Tex. App.—Waco Aug. 12, 2009) (not designated

for publication).

        Applicant contends, among other things, that trial counsel rendered ineffective assistance
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because he failed to investigate or subpoena a motel clerk and to argue at punishment that Applicant

voluntarily released the complainant in a safe place. TEX . PENAL CODE § 20.04(d).

       On September 23, 2015, we remanded this application for a response from trial counsel and

further findings of fact and conclusions of law. On remand, counsel filed a sworn affidavit and

stated that he interviewed the motel clerk and made a strategic decision not to subpoena or call him

as a witness. The trial court made further findings and conclusions and recommended that we deny

relief. We believe that the record is not sufficient to resolve Applicant’s claim.

       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 state the reasons for his strategic decision not to subpoena or call the

motel clerk as a witness. 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 further findings and

conclusions as to whether the motel clerk was available as a witness, counsel was deficient for not

subpoenaing or calling him as a witness, and but for this alleged deficient conduct, there is a

reasonable probability that the result would have been different in Applicant’s case. The trial court

shall also make any other findings of fact and conclusions of law that it deems relevant and
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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

be obtained from this Court.



Filed: June 29, 2016
Do not publish
