IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
ON APPLICATIONS FOR WRITS OF HABEAS CORPUS
CAUSE NUMBER 20,727-C IN THE 278TH JUDICIAL
DISTRICT COURT WALKER COUNTY
O R D E R
These are applications for writs of habeas corpus which were transmitted to this Court by the clerk of the trial court pursuant to the provisions of Article 11.07, Section 3, of the Texas Code of Criminal Procedure. Ex Parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Following a trial by jury, pursuant to Count I of the indictment, Applicant was convicted of aggravated assault on a public servant with a deadly weapon and was sentenced to twenty-five years imprisonment. Under Count II of the indictment, Applicant was convicted of possession of a deadly weapon in a penal institution. Applicant's sentence was assessed at ten years' imprisonment. In an unpublished opinion, the First Court of Appeals dismissed Applicant's appeal for want of jurisdiction because Applicant's notice of appeal was untimely filed. Leos v. State, Nos. 01-03-00332-CR and 01-03-00877-CR (Tex. App. - Harris [1st], no pets.).
In his third application, among other things, Applicant contends that he was denied his right to appeal due to his appellate counsel's failure to timely file his notice of appeal. Additionally, in his fourth application, Applicant presents the same claim of ineffective assistance as that presented on his third.
Adopting Applicant's proposed findings as included in his fourth application, the trial court originally found that Applicant was entitled to the opportunity to file an out-of-time appeal due to the ineffective assistance of his trial and appellate attorneys. Because the record did not contain any affidavits from trial or appellate counsel responding to Applicant's claims, this Court remanded to the trial court to obtain such affidavits and enter new findings of fact.
After remand, the trial court conducted a hearing on Applicant's claims, and again entered the same findings of fact and conclusions of law originally entered, recommending granting an out-of-time appeal. There is no indication in any of the supplemental filings from the trial court that either trial counsel or appellate counsel were afforded an opportunity to personally respond to Applicant's claims. Before we render a decision on the issue above, we believe that further factual findings are necessary and, because this Court cannot hear evidence, it is necessary for the matter to be remanded to the trial court for further resolution of the foregoing issue. The trial court shall resolve the issue as set out in Section 3, Article 11.07 of the Texas Code of Criminal Procedure, in that the court shall order affidavits from Applicant's trial and appellate counsel addressing Applicant's claim of ineffective assistance. The court may also order depositions, interrogatories or hold a second hearing.
If the trial court elects to hold another hearing, the court 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 Article 26.04 of the Texas Code of Criminal Procedure, appoint an attorney to represent him at the hearing.
Following the receipt of affidavits from counsel, the trial court shall make findings of fact as to whether Applicant was denied his right to a meaningful appeal due to his counsel's failure to timely file Applicant's notice of appeal. The trial court may also make any further findings of fact and conclusions of law which it deems relevant and appropriate to the disposition of Applicant's claims for relief.
Because this Court does not hear evidence, Ex Parte Rodriguez, 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. Resolution of the issue shall be accomplished by the trial court within sixty ninety days of the date of this order. (1) 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 ninety days one hundred and twenty days of the date of this order. (2)
DELIVERED: March 29, 2006
DO NOT PUBLISH
1. 2.