OPINION
CLINTON, Judge.
This is a post conviction application for writ of habeas corpus under the ambit of Article 11.07, V.A.C.C.P.
On October 18, 1969, Israel Hinojos was shot in the chest just after he had driven up to his parents’ home. His parents, who were the first to reach their son, did not see who fired the shot, but did hear a car drive away. The victim’s cousin, who arrived at the Hinojos residence twenty minutes later, stated that shortly before the shooting he had encountered applicant and several other Hispanic males in a parked car.1 They threatened “to get” Israel because of an earlier fight. While they were talking Israel drove by in his car; a car in which applicant was riding followed. As a result of this information, applicant and another Hispanic male were arrested later in the evening and charged with murder with malice. Applicant and two other Hispanic males were ultimately indicted for the offense.2 Applicant’s family retained Bill [G. Alexander of Odessa] to represent applicant at trial. However, because applicant had only paid part of Alexander’s fee the day before trial, Alexander assigned the newest associate in his firm, Michael McLeaish, to represent applicant in his murder trial. On January 22, 1971, applicant was convicted of the offense of murder with malice; punishment was assessed by the jury at ninety nine years. On direct appeal the Court affirmed the judgment of conviction without dissent. Ybarra v. State, 486 S.W.2d 937 (Tex.Cr.App.1972).
Having exhausted his avenue of direct appeal, applicant filed an application for writ of habeas corpus in the 70th Judicial District Court of Ector County on March 12, 1981, alleging that he was denied effective assistance of counsel during the murder trial. On May 26, 1981, a hearing was held on [945]*945applicant’s application. The judge of the habeas court entered findings of fact and conclusions of law agreeing that all of the contentions in applicant’s application were true. The judge, in recommending that relief in all things be granted, entered an order on June 8, 1981, granting applicant a new trial. Applicant was appointed counsel, stipulated to the evidence, and entered a plea of guilty to the offense of murder with malice. Punishment was assessed by the court at thirty years.
From our examination of the record, we are convinced that applicant was not afforded effective assistance of counsel; so we will vacate the judgment of conviction, and grant the relief sought.
I.
Before reviewing the habeas court’s decision to provide relief on application for writ of habeas corpus, we must first determine whether the court was authorized to grant ten years later an out of time new trial. Generally a motion for new trial must be determined within twenty days after it has been filed or it will be deemed overruled by operation of law. Article 40.05, V.A.C.C.P.;3 Trevino v. State, 565 S.W.2d 938 (Tex.Cr.App.1978); Abrams v. State, 563 S.W.2d 610 (Tex.Cr.App.1978); McIntosh v. State, 534 S.W.2d 143 (Tex.Cr.App.1976); Resendez v. State, 523 S.W.2d 700 (Tex.Cr.App.1975).
At the time of the trial court’s action on June 8, 1981, applicant’s motion for new trial filed on February 4, 1971, had already been overruled by operation of law. Applicant did not reurge his motion for new trial at the hearing on the writ of habeas corpus. There was in fact, at the time, no motion for new trial for the court to rule upon. Therefore, the court’s action must be characterized as granting a new trial of its own accord.
The question then arises whether the trial court acting sua sponte had the authority to grant an out of time motion for new trial. We find that it did not in these premises.4
A motion for new trial in a criminal case may be granted only on the timely made motion of a defendant and the trial court has no authority to grant a new trial on its own motion. Zaragosa v. State, 588 S.W.2d 322 (Tex.Cr.App.1979). In Zarago-sa, the trial court granted a new trial after defendant’s motion for new trial had been overruled by operation of law. This Court characterized the trial court’s action as granting a motion for new trial of its own accord, and stated:
“We are not unmindful of the provisions of Article 40.09, § 12, V.A.C.C.P., as to the authority of the trial court to grant a new trial during the appellate process, but we conclude that such authority is limited by its very provisions of the state to the time the defendant has been sentenced, gives notice of appeal and files an appellate brief asking in effect for a new trial.” 588 S.W.2d at 327.
In the instant case, we find the trial court had no power to grant the new trial as it did — though its concern about straightening out the matter without resorting to this Court is commendable. Still, it could not grant such relief in response to an application for writ of habeas corpus. Only the Court of Criminal Appeals has the authority [946]*946to grant relief as a result of post conviction writ of habeas corpus. See Article 11.07, § 3, V.A.C.C.P.; In re Brazil, 621 S.W.2d 811 (Tex.Cr.App.1981); Ex parte Friday, 545 S.W.2d 182 (Tex.Civ.App.1977); State ex rel. Wilson v. Briggs, 171 Tex.Cr.R. 479, 351 S.W.2d 892 (1961).
Accordingly, the judgment of the second conviction is set aside.
II.
With this threshold question resolved, the Court may proceed in its review of the decision by the habeas judge to “grant” the writ of habeas corpus for ineffective assistance of counsel.5
A criminal defense lawyer must have a firm command of the facts of the case as well as governing law before he can render reasonably effective assistance to his client — in or out of the courtroom. Ex parte Duffy, 607 S.W.2d 507, 516 (Tex.Cr.App.1980); Flores v. State, 576 S.W.2d 632, 634 (Tex.Cr.App.1978); Ex parte Ewing, 570 S.W.2d 941, 947 (Tex.Cr.App.1978); see also Herring v. Estelle, 491 F.2d 125, 128 (CA5 1974); Caraway v. Beto, 421 F.2d 636, 637 (CA5 1970); Williams v. Beto, 354 F.2d 698, 705 (CA5 1965). In the seminal decision of Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), the Supreme Court recognized that a thorough factual investigation is the foundation upon which effective assistance of counsel is built:
“It is not enough to assume that defense counsel thus precipitated into the case thought there was no defense, and exercised their best judgment in proceeding to trial without preparation. Neither they nor the court could say what a prompt and thorough-going investigation might disclose as to the facts. No attempt was made to investigate.”
287 U.S. at 58, 53 S.Ct. at 60, 77 L.Ed. at 165. Justice Sutherland writing for the Court in Powell, emphasized:
“The prompt disposition of criminal cases is to be commended and encouraged. But in reaching that result a defendant, charged with a serious crime, must not be stripped of his right to have sufficient time to advise with counsel and prepare his defense. To do that is not to proceed promptly in the calm spirit of regulated justice but to go forward with the haste of the mob.”
287 U.S. at 59, 53 S.Ct. at 61, 77 L.Ed. at 166.
As this Court recently reiterated in Ex parte Duffy, 607 S.W.2d at 517, regardless of the complications in a particular case, counsel is charged with making an independent investigation of the facts of the case, Flores v. State, supra, eschewing wholesale reliance in the veracity of his client’s version of the facts, Ex parte Ewing, supra, at 947. See also Rummel v. Estelle, 590 F.2d 103, 104 (CA5 1979), aff’d. on other grounds, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980) (counsel must make an independent examination of the facts, circumstances, pleadings and laws involved).
A natural consequence of this notion is that counsel also has a responsibility to seek out and interview potential witnesses, see, e.g., Davis v. Alabama, 596 F.2d 1214, 1217 (CA5 1979); Harris v. Estelle, 487 F.2d 1293, 1299 (CA5 1974); Williams v. Beto, 354 F.2d 698, 702-703, and failure to do so is to be ineffective, if not incompetent, where the result is that any viable defense available to the accused is not advanced. See Ex parte Duffy, supra; Brooks v. Texas, 381 F.2d 619, 625 (CA5 1967) and Smotherman v. Beto, 276 F.Supp. 579, 590 (N.D.Tex.1967).
[947]*947In light of these authoritatively declared duties and responsibilities, we reproduce what counsel says he did by way of preparation for trial and then point out and discuss that which he did not do.
It was developed at the habeas hearing that in early January, 1971, trial counsel Michael McLeaish, was employed as a new associate with the law firm of Alexander, Frazier & Edwards.6 Late in the evening on January 20, 1971, McLeaish walked into the hall of the law office and encountered Alexander and applicant. Alexander introduced applicant to McLeaish and stated that McLeaish would represent applicant the following morning at his murder trial. This was the first indication to McLeaish that he was going to handle applicant’s case.
McLeaish began his preparation for trial with less than twelve hours to get ready on the facts and law. Acknowledging at the habeas hearing that he had no prior trial experience, McLeaish revealed that he utilized his preparation time by studying the Code of Criminal Procedure. Besides that, McLeaish stated he did nothing else to prepare applicant’s case.7
The morning of trial, the trial judge gathered the attorneys in to discuss applicant’s motion for discovery.8 Counsel for applicant moved for five days notice of a hearing on the motion, citing Article 28.01, § 2, V.A.C.C.P., but the motion was denied upon “record statements.”9 McLeaish indicated that with the exception of the State’s witness list, which had apparently just been tendered, he wanted to determine whether the State had produced what had been sought by motion, and one of the prosecutors stated, “We have given you everything that we had,” and after the judge’s remark that it was “too late” the District Attorney said, “We will give him everything we have got before the trial starts.”
After the jury had been selected — the voir dire is not reproduced — in a last minute attempt to stay the start of the proceedings, McLeaish addressed the court to “plead with the Court to allow ... a hearing” on the motion, because the only demonstrative evidence produced was “this gun.” The court ruled out the motion for lateness. Then came the following colloquy with the District Attorney:
“Mr. Green: Do you want to see anything or not?
Mr. McLeaish: I have looked at the gun.
Mr. Green: What do you want to see?
Mr. McLeaish: What else do you have?
Mr. Green: Well—
Mr. McLeaish: Have you read my motion?
Mr. Green: Yes.
Mr. McLeaish: Do you have anything else?
Mr. Green: You have got the gun, the list of witnesses.
[948]*948Mr. McLeaish: Is that all?
Mr. Green: Is that all you want?
Mr. McLeaish: Are you going to produce anybody on fingerprints?
Mr. Green: No. No fingerprints. Are you satisfied?
Mr. McLeaish: If you have given me everything that I asked for in my motion I am satisfied.
Mr. Green: Okay.
The Court: Let’s proceed.
(The Jury was brought into the courtroom.)”
As a result of this informal discovery process, applicant was presented with a misleading list of the State’s witnesses,10 and but one of several State’s exhibits. Applicant had not previously examined the indictment,11 the State’s files on the case, nor met with his client to learn of potential defense witnesses, or to discover that two other persons had also been indicted for the murder of Israel Hinojos.12 In sum, we are unable to find that counsel for applicant did conduct “an independent investigation of the facts of the case” demanded of competent criminal defense lawyers by this Court in, e.g., Flores v. State, and Ex parte Ewing, both supra.
III.
It is well settled that an attorney has a professional duty to present all available testimony and other evidence to support the defense of his client. Ex parte Duffy, supra; Thomas v. State, 550 S.W.2d 64, 68 (Tex.Cr.App.1977). In the case at bar, however, this record glaringly reflects that McLeaish was limited to defending through crossexamination rather than presenting a defensive theory. As is so often the case in those situations where any viable defense has not been raised, the dereliction is because the attorney is not familiar with the defense or he has not adequately investigated the facts of the matter. See, e.g., Brooks v. Texas, supra, (insanity); Smotherman v. Beto, supra, (insanity); United States v. Fessel, 531 F.2d 1275 (CA5 1976) (insanity); Gomez v. Beto, 462 F.2d 596 (CA5 1972) (alibi); Caraway v. Beto, 421 F.2d 636 (CA5 1970). That this situation is present in the instant case is clear.
The first witness called by the State was Jesse Vellescas, the cousin of the victim. Vellescas testified that at approximately 9:30 p. m. on the evening in question he had a conversation with applicant. Applicant, along with three other Hispanic males, was sitting in the 1955 brown and white Oldsmobile.13 Somebody in the car called Vellescas over to the car and started talking about a fight involving the victim.14 During the course of the conversation, Vellescas noticed that applicant and one of the other occupants of the car were holding rifles. Both men pointed their guns at Vellescas and indicated they were going “to get” his cousin. At almost the same moment, the victim drove by in his car. The car in which applicant was riding followed. Vellescas testified that he gathered several of his buddies and proceeded to the victim’s home. When Vellescas arrived, he learned from the victim’s father that Israel had suffered a gunshot wound and had been taken to the hospital. Vellescas was not [949]*949able to place applicant at the scene of the offense.
Applicant’s erossexamination of Vellescas can be characterized as tenuous, at best. Although Vellescas was included on the State’s witness list, his street address was not given. The State obtained Vellescas’ presence at the trial by filing a bench warrant and securing his release from the Texas Department of Corrections.15 At the habeas corpus hearing, McLeaish testified that he had no idea that Vellescas was currently incarcerated in the Texas Department of Corrections when he crossexamined him.16 Knowledge of Vellescas’ prior conviction would have allowed counsel for applicant to impeach the witness’ general credibility. Additionally, counsel could have used such information to inquire on crossexamination whether Vellescas’ had made any arrangements with the District Attorney’s Office in exchange for his testifying for the State. In not knowing of the background of Vellescas, counsel for applicant engaged in what was surely an unprepared, and consequently ineffective, cross-examination of the State’s main witness with incriminating testimony.17
On redirect, with only a late untenable objection, the District Attorney engaged in bolstering of his principal witness with a prior consistent statement to police, as set out in the margin.18
The next two witnesses called by the State were Mr. and Mrs. Hinojos, the victim’s parents. Both testified that on the night in question they were sitting inside their home when they heard their son’s car pull into the driveway. Within a moment both heard a loud noise ring out, which Mr. Hinojos said was “a shot,” and Mrs. Hinojos called “a big shot.” The State then sought to establish the shot came from a “high-powered rifle.”19 When they got out on [950]*950the front porch, they found their son bleeding from a serious wound. On crossexami-nation, counsel for applicant managed to temper to a degree the certainty with which Mr. Hinojos believed what they heard was a shot from “a high-powered rifle,” but he blindly brought out that the witness “heard another car drive out.”20 This was to be the only testimony of another car near the premises, and that revelation fitted nicely with the State’s theory that the car carrying applicant pursued Israel home.
Dr. Wray Storey, a pathologist, was the next witness for the State. Storey testified that he performed the autopsy on Israel Hinojos. In his opinion, Israel died as a result of a gunshot wound to the chest. When shown a shell from a highpowered rifle, Storey stated that Israel’s wound was consistent with having been caused by such a projectile. He also testified that the wound could have been caused by a bullet from a British Enfield .303 caliber highpow-ered rifle (State’s Exhibit One). The cross-examination of Storey by counsel for applicant only briefly explored the fact that the victim’s wound could have been caused by a bullet from any type of highpowered rifle, and not just State’s Exhibit One — an obvious possibility at that time.
The State next called Mrs. Ike Williams to testify. Williams indicated, by way of a map, that her home was located a short distance away from the location where the victim was shot. According to Williams, around 9:40 p. m. she heard a loud crashing noise in her frontyard and went outside to investigate. Although it was dark, it appeared that a car had crashed into the fence in her frontyard. She heard people who were speaking Spanish running down the alley. Williams returned inside and turned on the floodlights in the backyard. When she went back outside, she saw two figures running down the alley. What appeared to be a brown and white Oldsmobile was still caught in the fence. Another person in the car backed it out of the fence, and drove north on Hickory Street. On crossexamination of this witness, though the State had not made the slightest suggestion that she could describe the two males,21 counsel asked broadly whether she “can identify who those people were at all.” Luckily, she could not. Furthermore, Williams admitted that a number of Spanish speaking people lived in her neighborhood. She was not asked if one of the running persons was carrying what appeared to be a rifle.22
Linda Herrera was the next witness called to testify for the State. Herrera, a neighbor of Williams, testified that around 9:40 p. m., on the evening in question, she heard a loud noise and looked out a back window of her home. She observed two men, whom she could not describe, running down the alley. One of the men was carrying a long object which she said looked “something like a gun,” but was not sure it was. Even the State recognized her testimony was not all that helpful, and the prosecutor promptly passed her for crossex-amination. Counsel for applicant simply had her reiterate her uncertainty. On redirect the State succeeded in getting her to say that the object being carried “could have been anything,” and then drew from her an admission that she had been “scared to testify.” Even though she added that “but it’s all over,” defense counsel deter[951]*951mined to explore that matter on recross. He asked pointblank, “What are you afraid of?” She accepted the suggestion that the courtroom made her “nervous,” but volunteered “or getting my family in trouble or something like that.” Counsel pursued that notion by asking whether her family was “going to get in any trouble” on account of her testifying, but when she responded with “what?” he thought better of it, withdrew the question and passed the witness.
The next witness called by the State to testify was Charles Jefferson, applicant’s next door neighbor.23 He testified that earlier in the evening of the day in question he worked in his garden in the backyard, cleaning out the dead sweet corn. While working in the area he failed to notice anything unusual. The next morning, around 8:30 a. m., Jefferson went to the alley to empty his trash. On his way back to the house, Jefferson stopped to look at his garden. When he looked over the fence, he saw a rifle lying in the garden. Jefferson left the rifle lying where he had found it, and called the police. On crossexamination, Jefferson admitted that he could not positively identify the rifle he found lying in the yard as State’s Exhibit One. Additionally, he had not seen anyone put the rifle where it was found, nor knew when it was placed in his garden, but he was “positive” it was not there earlier.
Lynn Snyder, an officer with the Odessa Police Department, was another State witness called to testify. Snyder related that in response to a call from Charles Jefferson he went to Jefferson’s house where he found a British Enfield .303 caliber high-powered rifle (State’s Exhibit One) in the garden. Snyder further testified that the police department was unsuccessful in lifting any fingerprints off the rifle. According to Snyder’s testimony, he was also the officer who investigated Williams’ damaged fence. While at Williams’ house, he cut several pieces of wire off the fence that appeared to have white paint on them. Snyder compared these paint chips with the paint on a brown and white Oldsmobile which was found behind applicant’s residence.24 According to Snyder the paint on both the fence and the car looked the same. Counsel posed only two questions to Snyder on crossexamination: whether the pictured Oldsmobile was the same car Snyder subjected to paint chip comparison- — it was— and whether that morning “couldn’t be any other car in your mind” — it could not. No inquiry was made regarding the method of comparison used for the paint chips, or the witness’ qualifications to formulate an opinion as a result of the comparison.
Detective Sergeant E. E. Howard of the Odessa Police Department was the next State witness. Howard investigated the scene of the offense on the evening in question. Howard testified that he removed bullet and shell fragments from a 1959 Chevrolet parked in the driveway. None of the fragments which Howard retrieved were large enough to show whether the bullet had been fired from the rifle in evidence.25 On crossexamination by counsel for applicant, Howard stated that the fragments could have come from any number of highpowered rifles in Odessa. Defense counsel asked no further questions.
[952]*952The final witness called to testify by the State was Charles Strackbein, an officer of the Odessa Police Department. It was Strackbein who executed an arrest warrant by taking applicant into custody at his home.26 Strackbein testified that he also arrested another Hispanic male named Ta-varez. At the time of arrest, a brown and white Oldsmobile was parked behind applicant’s house. No search was made to locate any type of weapon. Defense counsel’s sole question of Strackbein on crossexamination was whether applicant resisted arrest.
After the State rested, the record reflects that counsel for applicant called no witnesses in his client’s behalf nor adduced any defensive evidence. We are left with the impression that counsel for applicant was effectively precluded from gathering any information which could have been used in formulating a defensive theory.27 By not having time to probe and inquire, so as to seek out all facts relevant to applicant’s cause, trial counsel did little more than stand still at the time of trial. See Smotherman v. Beto, supra.
IV.
In Ex parte Duffy, 607 S.W.2d at 521, the Court referred to the California Court of Appeals case, People v. Corona, 145 Cal.Rptr. 894, 911-912, 917-918, 80 Cal.App.3d 684, 724 (1978), and found the California court’s reasoning cogent. Likewise its reasoning is equally applicable to the instant case:
“The very vice of the procedure followed by trial counsel was his failure to properly investigate and develop facts which could have or would have given rise to the defense in question [insanity]. Also, since the facts remained uncovered and undetected, there is no way of telling whether those facts, if fully developed, would or would not have established the defenses in dispute. If the record on appeal is defective or incomplete, it is due solely to the neglect of trial counsel. At any rate, the test of whether a criminal defendant was accorded an adequate legal defense does not depend on the potential success of the defense omitted, but rather on the consideration whether the defense withdrawn from the case was a crucial one. ..
In such circumstances we may not save the judgment by speculating whether the defense would have been successful, regardless of the apparent strength of the prosecution’s evidence, a trial in which only one side of the case is heard is ‘fundamentally unfair’ and hence constitutes a denial of due process of law. Such a conviction cannot stand.” People v. Corona, supra, 145 Cal.Rptr. at 917-918 (citations omitted).28
In a case such as this where the State’s evidence is entirely circumstantial and suggests a number of outstanding reasonable hypotheses besides the guilt of the accused, failure of counsel to present any evidence in behalf of his client mocks our adversary system under the law. Blame is not, how[953]*953ever, placed entirely on McLeaish. The prosecutors were less than candid at the outset prior to trial, and manifestly took advantage of counsel’s inexperience during trial. We no longer examine trial records to determine “a farce and a mockery” of justice, but we fail to find any aspect of this representation effective.29 As the Court stated in Rodriguez v. State, 170 Tex.Cr.App. 295, 340 S.W.2d 61, 63 (Tex.Cr.App.1960):
“[W]hen from the entire record it is apparent that the accused has not been adequately represented the court should have no hesitancy in so saying.”
The record in the case at bar reflects that the assistance provided applicant was shockingly ineffective. Because this applicant is so situated, this conviction and life sentence cannot stand, and it falls to us to say so.30 To hold otherwise would be, in the words of Justice Sutherland, “to ignore the fundamental postulate .. . that there are certain immutable principles of justice which inhere in the very idea of free government which no member of the Union may disregard.” Powell v. Alabama, 287 U.S. 45, 71, 53 S.Ct. 55, 65, 77 L.Ed. 158,172 (1932).
Accordingly, the relief sought is granted and judgment of conviction in Cause No. A — 4846 is set aside; the applicant is hereby remanded to the custody of the Sheriff of Ector County to answer the indictment in the case. A copy of this opinion will be forwarded to the Texas Department of Corrections.
It is so ordered.
DALLY, McCORMICK and TEAGUE, JJ., concur in result.