IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
CAUSE NO. C-2-007826-0928884-A IN THE
CRIMINAL DISTRICT COURT TWO FROM TARRANT COUNTY
Per curiam.
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 two counts of aggravated sexual assault of a child and sentenced to thirty-two (32) years' imprisonment. The Second Court of Appeals affirmed his conviction. Davenport v. Texas, No. 2-05-170-CR, (Tex. App.- Fort Worth, 2006, no. pet.).
Applicant contends inter alia that his counsel rendered ineffective assistance because counsel failed to timely notify Applicant that his conviction had been affirmed and failed advise him of his right to petition for discretionary review pro se. Applicant contends that he did not receive correspondence from counsel at the Choice Moore Unit during the time period that he could have filed a petition for discretionary review pro se.
The trial court has entered findings of fact and conclusions of law recommending that relief be denied. The record contains an affidavit from Danny Duane Pitzer who represented Applicant at trial and on appeal. However, the affidavit does not specify whether counsel advised Applicant of his right to file a petition for discretionary review pro se.
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. Pursuant to 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 as to whether Applicant's appellate counsel timely informed Applicant that his conviction had been affirmed and that he had a right to file a petition for discretionary review pro se. The trial court shall also make findings as to whether Applicant received correspondence from counsel at the Choice Moore Unit during the time period when he could have filed a petition for discretionary review pro se. 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: February 14, 2007
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