IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
CAUSE NO. W03-34709-W IN THE 363rd DISTRICT COURT
FROM DALLAS COUNTY
O R D E R
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 delivery of a controlled substance and sentenced to imprisonment for life. The Sixth Court of Appeals affirmed his conviction. Henderson v. State, No. 06-03-00221-CR (Tex. App.-Texarkana, delivered July 1, 2004, no pet.).
Applicant contends that his appellate counsel rendered ineffective assistance because, before he withdrew as appellate counsel, he failed to inform Applicant of his right to file a pro se petition for discretionary review. In addition, Applicant contends that he was not able to review the trial record in his case because, shortly after the record was forwarded to the H.H. Colfield Unit, where Applicant was incarcerated, he was transferred to the Dallas County Jail pursuant to a bench warrant. As a result, he contends that he was effectively denied his right to appeal.
On July 26, 2006, we remanded the application and instructed the trial court to make findings of fact as to whether appellate counsel was ineffective and whether Applicant was denied his right to appeal because he was not able to review the trial record. On remand, the trial court found, among other things, that Applicant had been transferred to the Dallas County Jail on May 20, 2004, and remained there until November 17, 2004. But the trial court made no findings as to whether Applicant was denied the opportunity to review the trial record after having been transferred to the Dallas County Jail. Instead, the trial court concluded: "Exactly how Applicant's stay in the Dallas County Jail affected his appeal in Cause No. F03-34709-UW is unknown." We believe that the trial court's findings are not sufficient to resolve Applicant's claim.
In these circumstances, additional facts are needed. As we held in Ex parte Rodriguez, 334 S.W.2d 294, 294 (Tex. Crim. App. 1997), the trial court is the appropriate forum for findings of fact. Accordingly, the trial court shall make additional findings of fact. 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 additional findings of fact as to whether Applicant was denied his right to appeal because he was not able to review the trial record after having been transferred to the Dallas County Jail. The trial court shall also make findings as to whether the trial record was forwarded to the H.H. Colfield Unit, where Applicant was incarcerated, shortly before he was transferred to the Dallas County Jail. 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. 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.
Filed: December 20, 2006
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