Opinion
No. WR-65,912-01
Filed: October 25, 2006. DO NOT PUBLISH.
On Application for a Writ of Habeas Corpus, Cause No. Cr 4922 in the 33rd Judicial District Court, from Llano 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 delivery of marihuana and sentenced to twenty years' imprisonment. Applicant contends that his counsel rendered ineffective assistance because counsel failed to inform Applicant that he could file a pro se appeal if he could not afford to retain counsel to represent him on appeal. 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 shall provide 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, first as to whether Applicant was informed by trial counsel or by the court of his right to appointed counsel on direct appeal. The trial court shall also make findings as to whether Applicant indicated any desire to appeal his conviction, and as to whether trial counsel filed a notice of appeal on Applicant's behalf. The court shall make findings as to whether and when trial counsel was permitted to withdraw from the representation, and as to whether appellate counsel was ever appointed in this case. The court shall make findings as to whether Applicant was denied his right to a meaningful appeal because Applicant's counsel failed to advise him of his appellate options or preserve his appellate rights by filing a notice 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. 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.