IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
CAUSE NO. CR-17910 IN THE 35TH DISTRICT COURT
FROM BROWN 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 felony driving while intoxicated and sentenced to fifty (50) years' imprisonment. The Eleventh Court of Appeals affirmed his conviction. Moore v. State, No. 11-05-00393-CR, (Tex. App.- Eastland, 2008, pet. dism'd) (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. He alleges that he therefore was deprived of his right to file a pro se petition for discretionary review.
Applicant has alleged facts which, if true, could entitle him to relief. Ex parte Wilson, 956 S.W.2d 25 (Tex. Crim. App. 1997). 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 appellate counsel with the opportunity to respond to Applicant's claim of ineffective assistance of counsel in that it shall order counsel to file an affidavit addressing: (1) whether counsel notified Applicant that his appeal had been affirmed; and, if so, (2) when counsel notified Applicant that his appeal had been affirmed. The trial court may use any means set out in Tex. Code Crim. Proc. art. 11.07, § 3(d) to resolve the fact issues. 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 informed Applicant that his conviction had been affirmed and, if so, when counsel informed Applicant that the conviction had been affirmed. The trial court shall make findings of fact as to whether appellate counsel's failure to timely inform Applicant that his conviction had been affirmed deprived Applicant of his right to file a pro se petition for discretionary review. 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 25, 2009
Do not publish