IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
CAUSE NO. 59CR1100 IN THE 6TH JUDICIAL DISTRICT COURT
FROM RED RIVER 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 entered an open plea of no contest to aggravated robbery, and was sentenced to ninety-nine years' imprisonment. His direct appeal was dismissed for want of jurisdiction.
Applicant contends, inter alia, that he was denied his right to appeal because appellate counsel failed to timely file notice of appeal. Applicant also alleges that his trial counsel rendered ineffective assistance because counsel failed to investigate, failed to consult with Applicant about possible defenses, and allegedly told Applicant that he would receive probation if he entered an open plea to the trial court. Applicant alleges that a pre-sentencing investigation was requested and ordered, but never conducted.
Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 668 (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 trial and appellate counsel with the opportunity to respond to Applicant's claims 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 trial counsel consulted with Applicant prior to trial, whether counsel advised Applicant of the consequences of his plea of no contest, and whether counsel promised Applicant that he would receive probation if he entered an open plea to the court. The trial court shall make findings as to whether a pre-sentencing investigation was done, and if not, why not. The trial court shall make findings as to why notice of appeal was not timely filed in this case. The trial court shall make findings as to whether the performance of Applicant's trial and 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: September 14, 2011
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