IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
CAUSE NO. 0893961 IN THE CRIMINAL DISTRICT COURT NO. 4
FROM TARRANT 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 writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of aggravated assault with a deadly weapon and sentenced to forty-eight (48) years' imprisonment. The Second Court of Appeals affirmed his conviction. Burns v. State, 2006 WL 412973, No. 02-04-601-CR (Tex. App. - Fort Worth Feb. 23, 2006) (not designated for publication).
Applicant contends that his appellate counsel rendered ineffective assistance because counsel failed to timely notify Applicant that his conviction had been affirmed. A letter from appellate counsel to the State Bar of Texas indicates that counsel failed to timely notify Applicant that his conviction had been affirmed. Based on this record, the trial court has entered findings of fact and conclusions of law that appellate counsel failed to timely notify Applicant that his conviction had been affirmed. The trial court recommends that relief be granted. Ex parte Wilson, 956 S.W.2d 25 (Tex. Crim. App. 1997).
We agree that 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). The current record supports the trial court's findings. 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. However, appellate counsel has not had an opportunity to respond to Applicant's claim in the context of habeas corpus review. The trial court shall provide appellate counsel with an 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).
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.
After appellate counsel has had an opportunity to respond to Applicant's claim, the trial court shall review its findings of fact as to whether Applicant's appellate counsel timely informed Applicant that his conviction had been affirmed on appeal. The trial court may confirm or modify these findings and 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, if any, 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