IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
CAUSE NO. CR-24947-A IN THE 159TH DISTRICT COURT
FROM ANGELINA 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 two counts of aggravated assault and sentenced to eighteen years' imprisonment for each count. The Twelfth Court of Appeals affirmed his convictions. Mitchell v. State, No. 12-05-00285-CR (Tex. App.-Tyler, delivered August 25, 2006, no pet.).
Applicant contends that his appellate counsel rendered ineffective assistance because he notified Applicant that his convictions had been affirmed on September 25, 2006, when in fact they had been affirmed on August 25, 2006. Based on the record, the trial court has entered findings of fact and conclusions of law that appellate counsel's clerical mistake constituted deficient performance, and that Applicant, as a result, was prejudiced. The trial court recommended granting Applicant an out-of-time petition for discretionary review.
We believe, however, that counsel should have an opportunity to respond to Applicant's claim. Accordingly, the trial court shall provide appellate 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 then make findings of fact as to whether Applicant's appellate counsel was ineffective. The trial court shall specifically make findings of fact as to whether appellate counsel included a copy of the appellate decision in the letter(s) counsel sent to Applicant, and if so, whether Applicant was prejudiced. 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: March 21, 2007
Do not publish