Opinion
No. WR-WR-65,039-01
Filed: July 26, 2006. DO NOT PUBLISH.
On Application for a Writ of Habeas Corpus, Cause No. 909670 in the 248th District Court, from Harris County.
ORDER
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 aggravated sexual assault of a child and sentenced to life imprisonment. Applicant filed a pro se notice of appeal, and his appointed appellate counsel filed an Anders brief, in which he concluded that the appeal was wholly frivolous and without merit. The Fourteenth Court of Appeals noted that although Applicant was advised of his right to examine the appellate record and file a pro se response, no such response was filed. The court of appeals affirmed his conviction. Faison v. State, No. 14-02-00575-CR (Tex.App.-Houston [14th] delivered March 27, 2003, no pet.). Applicant contends that he was denied his right to appeal this conviction, because he was denied access to the appellate record in order to prepare his pro se response. 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. 1997), the trial court is the appropriate forum for findings of fact. The trial court may resolve those issues as set out in Article 11.07, Section 3(d) of the Texas Code of Criminal Procedure, in that it may order affidavits from appellate counsel and from the clerk of the court of appeals. The trial court may also order depositions, interrogatories or a hearing. In the appropriate case, the trial court may rely on its personal recollection. 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 Applicant expressed his desire to obtain a copy of the appellate record in order to prepare a pro se response to counsel's Anders brief. If the court finds that Applicant did attempt to obtain the appellate record, the court shall make findings as to when and how Applicant attempted to obtain the record. The court shall also make findings as to whether Applicant ever received a copy of the appellate record, and if so when. If Applicant did not receive a copy of the appellate record, the trial court shall make findings as to why not. 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.