IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
CAUSE NOS. 32,320-A & 32,923-A IN THE 300TH JUDICIAL DISTRICT COURT
FROM BRAZORIA 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 these applications for writs of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant entered open pleas to two charges of robbery and was sentenced to ten years' imprisonment for each charge.
Applicant contends, inter alia, that his counsel rendered ineffective assistance because counsel failed to timely file a notice of appeal. Applicant alleges that he intended to preserve his right to appeal the trial court's ruling on a pre-trial motion to suppress. Although counsel voiced this intention on the record, and the trial court stated on the record that Applicant retained the right to appeal the suppression issues, no notice of appeal was filed in either cause, and no appellate counsel was appointed.
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 counsel with the opportunity to respond to Applicant's claim of ineffective assistance of counsel on 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 first as to whether Applicant expressly waived his right to appeal when he entered his pleas in these causes. If Applicant did expressly waive his right to appeal, the trial court shall supplement the record with copies of the waiver(s). If Applicant did not expressly waive the right to appeal the trial court's ruling on the motion to suppress, the trial court shall make findings of fact as to whether appellate counsel was appointed and whether notice of appeal was filed. If not, the trial court shall make findings as to why not. The trial court shall also make findings as to whether Applicant was led to believe that he would retain the right to appeal the suppression issues if he entered guilty pleas in these causes. 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.
These applications 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 3, 2007
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