BURKS, BOBBY RAY Jr.

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-27,316-03
EX PARTE BOBBY RAY BURKS, JR., Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 10-691-K277 IN THE 277TH DISTRICT COURT
FROM WILLIAMSON COUNTY
Per curiam. Richardson, J. not participating.
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 capital murder
and sentenced to life years’ imprisonment. The Third Court of Appeals affirmed his conviction.
Burks v. State, No. 03-12-00181-CR (Tex. App.—Austin Mar. 26, 2014).
Applicant contends, among other things, that his trial counsel rendered ineffective assistance
by failing to investigate, failing to present a defense, failing to instruct the jury on the term
accomplice, and failing to challenge cell phone records. He also alleges that appellate counsel was
ineffective for failing to perfect the appeal, having a conflict of interest, and failing to include a
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ground of ineffective trial counsel on appeal.
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 and appellate counsel to respond to Applicant’s claims of ineffective assistance of
counsel. 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 Applicant at the hearing. TEX . CODE CRIM . PROC. art. 26.04.
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 must
be requested by the trial court and shall be obtained from this Court.
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Filed: June 13, 2018
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