IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
CAUSE NO. S-07-3241CR IN THE 36TH DISTRICT COURT
FROM SAN PATRICIO 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 aggravated sexual assault and indecency with a child and sentenced to two terms of twenty years' imprisonment.
Applicant contends that he was denied his right to appeal. On November 26, 2008, we remanded this application for findings of fact and conclusions of law. On remand, the trial court found that trial counsel was not retained to file an appeal and that Applicant did not ask trial counsel to file an appeal. We believe the record is not adequate to resolve Applicant's claim. Accordingly, the trial court shall make findings of fact on whether Applicant filed pretrial motions and, if so, whether he waived his right to appeal these motions. If the trial court finds that Applicant did file pretrial motions and did not waive his right to appeal these motions, the trial court shall provide counsel with the opportunity to state whether he advised Applicant on the "meaning and effect of the judgment rendered by the court, his right to appeal from that judgment, the necessity of giving notice of appeal and taking other steps to pursue an appeal, as well as expressing his professional judgment as to possible grounds for appeal and their merit, and delineating advantages and disadvantages of appeal." Ex parte Axel, 757 S.W.2d 369, 374 (Tex. Crim. App. 1988). 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 him at the hearing. Tex. Code Crim. Proc. art. 26.04.
The trial court shall make further findings of fact on whether Applicant was denied his right to a meaningful appeal. 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: October 7, 2009
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