IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
CAUSE NO. F38259 (COUNTS 1, 2) IN THE 249TH JUDICIAL DISTRICT COURT
FROM JOHNSON 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 possession of a controlled substance with intent to deliver and possession of a firearm by a felon, and punishment was assessed at ninety-nine (99) years' confinement. Applicant's appeal was dismissed for want of jurisdiction. Teague v. State, No. 10-0500306-CR (Tex. App. -- Waco, delivered, September 14, 2005, no pet.).
Applicant contends that he was denied his right to appeal when trial counsel failed to file a notice of appeal as Applicant had requested.
The trial court has entered an order concluding "that there are no controverted, previously unresolved issues of fact material to the legality of the Applicant's confinement. . . ." However, we disagree. Applicant has stated facts requiring resolution. Because this Court cannot hear evidence, it is necessary for the matter to be remanded to the trial court for resolution. The trial court shall resolve the factual issues as set out in Tex. Code Crim. Proc. art 11.07, § 3 (d), in that it may order affidavits, depositions, or interrogatories from defense counsel, or it may hold a hearing. In the appropriate case, the trial court may rely on personal recollection and court records.
If the trial court elects to hold a hearing, the court should first decide whether Applicant is indigent. If the 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.
Following receipt of additional information, the trial court shall make findings of fact as to whether Applicant timely requested that trial counsel file a notice of appeal, whether such notice was timely filed, and when, if ever, Applicant first learned that such notice had not been timely filed. The trial court shall 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.
The trial court shall supplement the habeas record with copies of all documents upon which its findings are based, including copies of the indictment, judgment, excerpts of the trial transcript, affidavits from counsel, and any other relevant documents.
Because this Court does not hear evidence, Ex Parte Rodriguez, 169 Tex.Cr.R. 367, 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 ninety (90) days of the date of this order. (1) A supplemental transcript containing all 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 one hundred twenty (120) days of the date of this order. (2)
IT IS SO ORDERED THIS THE FIRST DAY OF FEBRUARY, 2006.
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.