IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-74,155-01
EX PARTE ROSFEL GARZA, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. CR-3083-02-C IN THE 139TH DISTRICT COURT
FROM HIDALGO 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 a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of murder and sentenced to thirty years’ imprisonment. The Thirteenth Court of Appeals dismissed his appeal. Garza v. State, No. 13-03-00557-CR (Tex. App.–Corpus Christi 2004, no pet.).
Applicant contends that trial counsel was ineffective because he failed to advise Applicant that he waived his right to appeal. The trial court made findings of fact and conclusions of law and recommended that we deny relief. We believe that the record is not adequate to resolve Applicant’s claim. Accordingly, the trial court shall order trial counsel, Charles A. Banker III, to respond to Applicant’s claim. 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 him at the hearing. Tex. Code Crim. Proc. art. 26.04.
The trial court shall make further findings of fact and conclusions of law as to whether trial counsel advised Applicant that he would waive his right to appeal in exchange for the State’s recommendation on punishment. According to the record, even though Applicant waived his right to appeal in writing, trial counsel advised Applicant that he would file his notice of appeal and would begin working on his appeal if appointed. 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: June 30, 2010
Do not publish