IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
CAUSE NO. 09-06762-A IN THE 252ND JUDICIAL DISTRICT COURT
FROM JEFFERSON 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 pleaded guilty to theft and originally received four years' deferred adjudication community supervision. His guilt was later adjudicated and he was sentenced to two years' state jail imprisonment.
Applicant contends, inter alia, that his counsel rendered ineffective assistance because counsel failed to timely file a notice of appeal. Applicant alleges that the adjudicating court asked him whether he wanted to appeal, and that he responded that he did. However, Applicant alleges that appellate counsel was never appointed, and he believes that trial counsel failed to file a notice of appeal on his behalf.
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 counsel with the opportunity to respond to Applicant's claim of ineffective assistance of counsel on appeal. 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 first supplement the record with a transcript of the adjudication proceedings. The trial court shall make findings of fact as to whether Applicant did state that he wanted to appeal after adjudication, and if so, whether trial counsel filed a notice of appeal on his behalf. The trial court shall make findings as to whether appellate counsel was ever appointed, and as to whether trial counsel was permitted to withdraw from the representation. The trial court shall make findings as to whether Applicant was denied his right to a meaningful appeal because Applicant's counsel failed to timely file a notice of appeal. 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: April 20, 2011
Do not publish