IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
CAUSE NO. 4-93-821 IN THE 114TH DISTRICT COURT
FROM SMITH 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 indecency with a child and sentenced to twenty years' imprisonment. The Twelfth Court of Appeals dismissed his appeal. Hawkins v. State, No. 12-06-00386-CR (Tex. App.-Tyler, delivered January 31, 2007, no pet.).
Applicant contends that his appellate counsel rendered ineffective assistance because she filed a notice of appeal but failed to include the trial court's certification. Tex. R. App. P. 25.2(d). The trial court concluded that Applicant was denied his right to appeal and recommended that we grant Applicant an out-of-time appeal. We believe that appellate counsel should have an opportunity to respond to Applicant's claim. Accordingly, the trial court shall provide appellate counsel with the opportunity to respond.
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 him at the hearing. Tex. Code Crim. Proc. art. 26.04.
The trial court shall make further findings of fact as to whether the performance of appellate counsel was deficient and, if so, whether Applicant was denied his right to 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: October 17, 2007
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