IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
CAUSE NO. CR-05-280-A IN THE 22ND JUDICIAL DISTRICT COURT
FROM HAYS 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 writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of murder and sentenced to fifty-five years' imprisonment.
Applicant contends that he was deprived of the right to appeal his conviction, because trial counsel moved to withdraw from the representation after sentencing, requesting that appellate counsel be appointed to represent Applicant in all post-trial proceedings, including motion for a new trial and appeal. Trial counsel did not file a notice of appeal. The trial court granted counsel's motion to withdraw, but failed to appoint appellate counsel. Therefore, Applicant was denied counsel on direct appeal, and was denied the opportunity to appeal his conviction.
Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 608 (1984); Ex parte Lemke, 13 S.W.3d 791,795-96 (Tex. Crim. App. 2000). 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. The trial court shall provide trial counsel with the opportunity to respond to Applicant's claim that he moved to withdraw without filing a notice of appeal. The trial court may use any means set out in Tex. Code Crim. Proc. art. 11.07, § 3(d). In the appropriate case, the trial court may rely on its personal recollection. Id.
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 as to whether trial counsel filed a notice of appeal on Applicant's behalf prior to withdrawing from the representation. The trial court shall also make findings as to whether appellate counsel was ever appointed pursuant to the request in trial counsel's motion to withdraw. If appellate counsel was not appointed, the trial court shall make findings as to why not. The trial court shall then make findings as to whether Applicant was denied his right to a meaningful appeal because he did not have the assistance of counsel for appeal. 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: November 1, 2006
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