Opinion
WR-95,790-01 WR-95,790-02
07-31-2024
EX PARTE RINO REY ACOSTA, Applicant
Do not publish
On Applications for writs of Habeas Corpus Cause Nos. 6607-A & 6606-A in the 100th District Court from Childress County
ORDER
PER CURIAM.
Applicant was originally placed on deferred adjudication for two separate offenses of burglary of a habitation. Later, he was adjudicated guilty and sentenced to twenty-five years' and fifty years' imprisonment. The Seventh Court of Appeals affirmed his convictions. Acosta v. State, Nos. 07-22-00149-CR & 07-22-00150-CR (Tex. App.-Amarillo Aug. 23, 2023) (not designated for publication). Applicant filed these applications for writs of habeas corpus in the county of conviction, and the district clerk forwarded them to this Court. See Tex. Code Crim. Proc. art. 11.07.
Applicant contends that he was deprived of his right to file petitions for discretionary review. Applicant has alleged facts that, if true, might entitle him to relief. Ex parte Wilson, 956 S.W.2d 25 (Tex. Crim. App. 1997); Ex parte Crow, 180 S.W.3d 135 (Tex. Crim. App. 2005). Accordingly, the record should be developed. The trial court is the appropriate forum for findings of fact. Tex. Code Crim. Proc. art. 11.07, § 3(d). The trial court shall order appellate counsel to respond to Applicant's claim. Appellate counsel shall state whether he informed Applicant that his convictions had been affirmed and advised him of his right to file pro se petitions for discretionary review. In developing the record, the trial court may use any means set out in Article 11.07, § 3(d). It appears that Applicant is represented by counsel. If the trial court elects to hold a hearing, it shall determine if Applicant is represented by counsel, and if not, whether Applicant is indigent. If Applicant is indigent and wants to be represented by counsel, the trial court shall appoint counsel to represent him at the hearing. See Tex. Code Crim. Proc. art. 26.04. If counsel is appointed or retained, the trial court shall immediately notify this Court of counsel's name.
The trial court shall make findings of fact and conclusions of law as to whether appellate counsel timely informed Applicant that his convictions had been affirmed and that he had a right to file pro se petitions for discretionary review. The trial court shall also determine whether Applicant would have timely filed petitions for discretionary review but for appellate counsel's alleged deficient performance. The trial court may make any other findings and conclusions that it deems appropriate in response to Applicant's claim.
The trial court shall make findings of fact and conclusions of law within ninety days from the date of this order. The district clerk shall then immediately forward to this Court the trial court's findings and conclusions and the record developed on remand, including, among other things, affidavits, motions, objections, proposed findings and conclusions, orders, and transcripts from hearings and depositions. See Tex. R. App. P. 73.4(b)(4). Any extensions of time must be requested by the trial court and obtained from this Court.