IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
CAUSE NO. 701072 IN THE 177th JUDICIAL DISTRICT COURT
FROM HARRIS 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 robbery and sentenced to 15 years' imprisonment.
Applicant contends that his counsel rendered ineffective assistance because counsel failed to fully advise Applicant of his right to appeal. Applicant pled guilty pursuant to a plea bargain and so he waived his right to appeal except as to those matters that were raised by written motion filed and ruled on before trial or after getting the trial court's permission to appeal. Tex. R. App. P. 25.2. Applicant asserts that but for counsel's failure to advise him of his right to appeal, he would have been able to appeal two pre-trial motions, a motion to suppress evidence and a motion to suppress identification, which he alleges were adversely ruled upon by the trial court before he entered his guilty plea.
Applicant has alleged facts that, if true, might entitle him to relief. Ex parte Axel, 757 S.W.2d 369 (Tex. Crim. App. 1988). In these circumstances, additional facts are needed. As we held in Ex parte Rodriguez, 334 S.W.2d 294, 294 (Tex. Crim. App. 1960), the trial court is the appropriate forum for findings of fact. The trial court shall provide counsel with another opportunity to respond to Applicant's claim of ineffective assistance of counsel. 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 was denied his right to a meaningful appeal because he was not advised of his right to appeal adverse pre-trial rulings and the need to timely file a notice of appeal in order to exercise that right. 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: September 10, 2008
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