IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-75,111-01
EX PARTE RONALD LAMAR SMITH, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 2010-29-C2 IN THE 54TH DISTRICT COURT
FROM McLENNAN 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). Applicant was convicted of assault and sentenced to fifteen years’ imprisonment.
Applicant contends that trial counsel’s ineffective assistance denied him the right to a direct appeal. Applicant alleges that, after a bench trial, he advised counsel that he wanted to appeal and that counsel advised him that he was not an appellate lawyer and that the trial court would see to it that applicant was appointed appellate counsel. Applicant alleges that appellate counsel was not appointed until after the appellate deadlines had passed.
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). The habeas record contains no response from the State and no findings from the trial court. 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 order counsel 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.
It appears that Applicant is represented by counsel. If the trial court elects to hold a hearing, it shall determine whether Applicant is represented by counsel. If Applicant not represented by counsel, 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 habeas record contains a document suggesting that Applicant waived his right to file an appeal. The trial court shall make findings of fact as to whether applicant knowingly waived his right to appeal. If the trial court finds that this waiver was involuntary, the trial court shall make findings of fact as to whether Applicant was denied his right to a meaningful appeal because Applicant’s counsel failed to timely file a notice of appeal or otherwise take steps to safeguard Applicant’s right to a direct 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: January 26, 2011
Do not publish