IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-44,260-04
EX PARTE STEVEN RAY CLINE, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 9451 IN THE 33rd JUDICIAL DISTRICT COURT
BURNET COUNTY
O R D E R
This is an application for a writ of habeas corpus which was transmitted to this Court by the clerk of the trial court pursuant to the provisions of Tex. Code Crim. Proc. art. 11.07. Applicant was convicted of the offense of driving while intoxicated, and punishment was assessed at twenty years' confinement. No direct appeal was taken.
Applicant contends that he was denied his right to appeal. Specifically, Applicant claims that he thought a notice of appeal was timely filed, but maintains that he learned it was due to no fault of his own.
The trial court has entered findings of fact or conclusions of law finding that "that the appeal was not perfected and that the same was through no fault of the defendant and that he should be granted the right to an out of time appeal." However, we do not believe that those factual findings are sufficient to completely resolve the issues presented. Counsel should have notice of the allegations against him and an opportunity to respond before he is adjudged to have rendered ineffective assistance of counsel. Because Applicant has stated facts requiring resolution and because this Court cannot hear evidence, it is necessary for the matter to be remanded to the trial court for resolution of those issues. The trial court may resolve those issues as set out in Tex. Code Crim. Proc. art. 11.07, § 3 (d), in that it shall order affidavits, depositions, or interrogatories from counsel or it may order a hearing. In the appropriate case the trial court may also rely on its personal recollection.
If the trial court elects to hold a hearing, it shall first decide whether Applicant is indigent. If the trial court finds that Applicant is indigent and Applicant desires to be represented by counsel, the trial court will then, pursuant to the provisions of Tex. Code Crim. Proc. art. 26.04, appoint an attorney to represent him at the hearing.
The trial court should then make findings of fact as to whether Applicant was deprived of his right to appeal due to the ineffective assistance of his counsel. The trial court should also make any further findings of fact and conclusions of law it deems relevant and appropriate to the disposition of the application for writ of habeas corpus.
Because this Court does not hear evidence, Ex Parte Rodriquez, 334 S.W.2d 294 (Tex.Crim.App. 1960), this application for a post-conviction writ of habeas corpus will be held in abeyance pending the trial court's compliance with this order. The trial court shall resolve the issues presented within 90 days of the date of this order. (1) A supplemental transcript containing any affidavits, the transcription of the court reporter's notes from any interrogatories or hearings held, along with the trial court's findings of fact and conclusions of law, shall be returned to this Court within 120 days of the date of this order. (2)
IT IS SO ORDERED THIS THE 14th DAY OF December, 2005.
EN BANC
DO NOT PUBLISH
1. In the event any continuances are granted, copies of the order granting the continuance
should be provided to this Court.
2. Any extensions of this time period should be obtained from this Court.