IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
CAUSE NO. 54,899 IN THE 239TH JUDICIAL DISTRICT COURT
FROM BRAZORIA 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 two counts of intoxication manslaughter and one count of intoxication assault, and sentenced to two years'imprisonment for each count of intoxication manslaughter, to run consecutively with each other, and ten years' probation for the intoxication assault, to run concurrently with the prison sentences. Applicant filed notice of appeal, but then later withdrew the appeal. Patterson v. State, No. 01-08-00987-CR (Tex. App. - Houston [1st Dist.] January 15, 2009). This Court denied and dismissed Applicant's first writ of habeas corpus on November 4, 2009.
In this writ application, Applicant contends that his appellate counsel rendered ineffective assistance because appellate counsel advised him to withdraw his direct appeal. Applicant alleges that he wanted to challenge the trial court's ruling regarding admissibility of blood evidence on direct appeal, but that appellate counsel advised him that he could raise the claim by way of post conviction habeas corpus, and would not risk being re-tried and given a harsher sentence if he obtained relief by way of habeas corpus. Applicant alleges that he would not have withdrawn his direct appeal but for appellate counsel's incorrect advice. Applicant also alleges that he did not know that his challenge to the trial court's evidentiary ruling was waived by failure to raise it on direct appeal until this Court denied his first writ application.
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. 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 applicant's appellate counsel with the 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 appellate counsel advised Applicant to withdraw his notice of appeal, and if so, why appellate counsel advised Applicant to do so. The trial court shall make findings as to whether appellate counsel advised Applicant that he could raise his challenge to the trial court's evidentiary ruling by way of habeas corpus, and if so, whether he advised Applicant that he would not be subject to retrial if he obtained relief by way of habeas corpus. The trial court shall make findings as to whether the performance of Applicant's appellate attorney was deficient and, if so, whether counsel's deficient performance prejudiced applicant. 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 9, 2010
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