IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-73,646-01
EX PARTE AIMEE ANDREA FISHER-RIZA, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. F41507 IN THE 413TH DISTRICT COURT
FROM JOHNSON 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 writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Pursuant to a multi-count indictment, Applicant was convicted of felony murder and injury to a child and sentenced to twenty-eight years’ and twenty years’ imprisonment, respectively. The First Court of Appeals affirmed her convictions. Fisher-Riza v. State, No. 01-08-00264-CR (Tex. App.–Houston [1st Dist.], delivered December 3, 2009).
Applicant contends that her appellate counsel rendered ineffective assistance because counsel failed to timely notify Applicant that her conviction had been affirmed and failed to advise her of her right to petition for discretionary review pro se. Specifically, she claims she did not receive notice until January 22, 2010, more than two weeks after the deadline for filing a petition for discretionary review had passed.
Applicant has alleged facts that, if true, might entitle her 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. Pursuant to 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 obtain the prison mail logs from the Texas Department of Criminal Justice to determine whether or not Applicant was timely notified by counsel that her conviction had been affirmed and of her right to file a pro se petition for discretionary review. In addition, 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’s appellate counsel timely informed Applicant that her conviction had been affirmed and that she had a 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 31, 2010
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