Opinion
WR-82 340-02
09-15-2021
EX PARTE ROBERT CLAYTON BRADLEY, Applicant
DO NOT PUBLISH
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. CR18-0469-392-A IN THE 392ND DISTRICT COURT FROM HENDERSON COUNTY
ORDER
PER CURIAM.
Applicant was convicted of murder and sentenced to 30 years' imprisonment. He filed this application for a writ of habeas corpus in the county of conviction, and the district clerk forwarded it to this Court. See Tex. Code Crim. Proc. art. 11.07.
Applicant contends that he was denied his right to an appeal because counsel failed to timely file a notice of appeal. Applicant has alleged facts that, if true, might entitle him to relief. See Garza v. Idaho, 139 S.Ct. 738, 748, 749-50 (2019); Roe v. Flores-Ortega, 528 U.S. 470, 484 (2000); Jones v. State, 98 S.W.3d 700, 703-04 (Tex. Crim. App. 2003); Ex parte Axel, 757 S.W.2d 369 (Tex. Crim. App. 1988). 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 trial counsel and appellate counsel to respond to Applicant's claim. 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. However, if the trial court elects to hold a hearing, it shall determine whether Applicant is represented by counsel. If Applicant is indigent and wishes 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 (and, if so, when and how):
(1) Trial counsel fully advised Applicant of his right to appeal from the judgment and the need to give notice of appeal;
(2) Applicant initially waived his right to appeal;
(3) Appointed appellate counsel contacted Applicant;
(3) Applicant informed trial counsel and/or appellate counsel that he wanted to pursue an appeal; and
(4) Trial counsel and/or appellate counsel responded to Applicant after he informed one or both of them that he wanted to pursue an appeal.
The trial court shall determine whether Applicant was denied his right to an appeal because trial counsel and/or appellate counsel failed to timely file a notice of appeal. See Garza, 139 S.Ct. at 748. 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.