Opinion
NOS. WR-78,605-01 and 02
03-27-2013
ON APPLICATIONS FOR A WRIT OF HABEAS CORPUS
CAUSE NOS. C-37,580-01-A and C-37,581-A IN THE 244th DISTRICT COURT
FROM ECTOR COUNTY
Per curiam .
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 these applications for a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of driving while intoxicated and criminal mischief and sentenced to four years' imprisonment and two years imprisonment in a state jail facility, respectively.
Applicant contends that his counsel rendered ineffective assistance because counsel failed to timely file notices of appeal in these cases. The trial court, based upon an affidavit obtained from counsel, recommends that relief be denied. However, the affidavit included in the record does not adequately address the claim raised by the Applicant.
In his affidavit, counsel claims that he informed Applicant of the time limits involved in filing notices of appeal. However, the exhibit he includes in support of this statement does not set out the time limits for filing any notice of appeal, only for filing a pro se petition for discretionary review. Furthermore, counsel's affidavit does not address the validity of Applicant's claim that he timely notified counsel of his desire to appeal these convictions. And, if he was so notified, why counsel did not timely file pro se notices of appeal on Applicant's behalf along with a motion to withdraw and a request for the appointment of appellate counsel.
Counsel's exhibit is a copy of the "Trial Court's Certification of Defendant's Right of Appeal."
Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 668 (1984); Ex parte Patterson, 993 S.W.2d 114, 115 (Tex. Crim. App. 1999); Ex parte Axel, 757 S.W.2d 369 (Tex. Crim. App. 1988). In these circumstances, additional facts are needed. As we held in 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 order counsel 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).
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 was denied his right to meaningful appeals because Applicant's counsel failed to timely file notices of appeal. 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.
These applications 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. Do not publish