Opinion
No. WR-WR-65,213-01
Delivered: August 30, 2006. DO NOT PUBLISH.
On Application for a Writ of Habeas Corpus, Cause No. F-97-0069-BWHC1 in the 158th District Court from Denton 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 pleaded guilty on August 8, 1997 to aggravated assault and was sentenced to five years' imprisonment, probated for five years. On March 2, 2001, Applicant's community supervision was revoked, and she was sentenced to five years' imprisonment. Applicant's conviction was affirmed on direct appeal. Jefferson v. State, no. 02-01-00137-CR (Tex.App.-Ft. Worth, August 15, 2002, no pet.) Applicant contends that her trial and/or appellate counsel rendered ineffective assistance because she heard nothing from counsel and did not know what to do after she was released on appeal bond. According to Applicant, she was not aware of any further obligation arising from this conviction until she was arrested on March 2, 2006, and began serving her sentence. There is nothing in the habeas record to indicate what transpired after Applicant's release on appeal bond. Applicant has alleged facts that, if true, might entitle her 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 shall provide applicant's trial and/or appellate counsel with the opportunity to respond to Applicant's claim of ineffective assistance of counsel. 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 as to why Applicant did not begin to serve her five-year sentence at the time of sentencing, on March 2, 2001, or at the time her conviction was affirmed on direct appeal, on August 15, 2002. The court shall make findings of fact as to whether the performance of Applicant's trial and/or appellate attorney was deficient and, if so, whether counsel's deficient performance prejudiced Applicant. 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.