IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
CAUSE NO. 010155, 010156, 10185 & 10186
IN THE 259TH JUDICIAL DISTRICT COURT
FROM JONES 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 these applications for writs of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant entered open pleas of guilty to three charges of delivery of a controlled substance, and one charge of possession of a controlled substance. He was sentenced to eighteen months' state jail imprisonment for each of the delivery charges, and eighteen months' state jail, probated for the possession charge.
Applicant contends, inter alia, that his counsel rendered ineffective assistance because counsel failed to timely file notices of appeal. We remanded these cases to the trial court to obtain affidavits and findings addressing Applicant's allegations. Counsel has filed an affidavit in which he states that he did file motions for new trial in these cases in order to delay Applicant's incarceration, but did not file notices of appeal because he had not been retained to perform post-conviction work. The trial court did not enter specific findings of fact and conclusions of law pursuant to this Court's remand order.
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. Specifically, counsel should respond as to whether he advised Applicant of his right to appeal, and as to whether Applicant indicated a desire to appeal in these cases. Counsel should state whether he advised Applicant that he had the right to retained or appointed counsel to pursue a direct appeal, and whether he ever withdrew from the representation in these cases. 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 first as to whether Applicant's probation in cause No. 010186-A has ever been revoked. Next, the trial court shall make specific findings as to whether Applicant was denied his right to a meaningful appeal because Applicant's counsel failed to timely file notices 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 30 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 60 days of the date of this order. Any extensions of time shall be obtained from this Court.
Filed: March 16, 2011
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