No. WR-69,651-01
Delivered: June 11, 2008. DO NOT PUBLISH.
On Application for a Writ Of Habeas Corpus, Cause No. 2004CR4333-W1 In the 226th Judicial District Court from Bexar 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 writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex.Crim.App. 1967). Applicant was convicted of aggravated robbery and sentenced to thirty years' imprisonment. The Fourth Court of Appeals affirmed his conviction. Floyd v. State, No. 04-05-00006-CR (Tex.App.-San Antonio, February 8, 2006, pet. ref'd). Applicant contends, inter alia, that his trial counsel rendered ineffective assistance because she failed to request a jury instruction on the lesser-included offense of robbery, failed to file a motion for a new trial, failed to investigate the existence of an exculpatory video tape, and failed to advise or allow Applicant to testify on his own behalf. The trial court has entered findings of fact and conclusions of law, in which the court cites to an affidavit provided by counsel responding to Applicant's allegations. However, the affidavit was not included in the habeas record. Furthermore, some of the trial court's findings appear to pertain to a different writ, rather than to Applicant's writ claims. The trial court shall supplement the habeas record with a copy of trial counsel's affidavit. If the trial court's findings erroneously contain findings pertaining to a different application, the trial court shall enter new findings of fact and conclusions of law, or make corrections to its existing findings if corrections are necessary. 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.