IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
CAUSE NO. FR 64040-A IN THE 426TH DISTRICT COURT
FROM BELL 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 a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of aggravated sexual assault and sentenced to sixty years' imprisonment. The Third Court of Appeals affirmed his conviction. Green v. State, No. 03-09-00718-CR (Tex. App. - Austin, October 8, 2010).
Applicant contends that his appellate counsel rendered ineffective assistance because counsel failed to timely notify Applicant that his conviction had been affirmed and failed to advise him of his right to petition pro se for discretionary review. Appellate counsel has provided an affidavit in response to Applicant's allegations, in which he states that he timely sent Applicant a letter informing him of the court of appeals' decision and advising him of his right to file a pro se PDR. The trial court refuses to speculate on whether appellate counsel rendered effective assistance, because the record is unclear as to whether notification was sent and not received, or whether it was never sent. Nevertheless, the trial court recommends granting Applicant an out-of-time PDR.
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 copies of the mail logs from the French Robertson Unit from October 8, 2010 until November 7, 2010, showing whether or not Applicant received any incoming mail from appellate counsel during that period. The trial court may use any means set out in Tex. Code Crim. Proc. art. 11.07, § 3(d).
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 and conclusions of law as to whether Applicant timely received appellate counsel's letter informing him that his conviction had been affirmed and that he 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. 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 forwarded to this Court within 120 days of the date of this order. Any extensions of time shall be obtained from this Court.
Filed: December 5, 2012
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