Opinion
WR-94,274-02
05-03-2023
EX PARTE JEFFREY DON DAVIDSON, Applicant
Do not publish
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. CR02932-HC-1 IN THE 6TH DISTRICT COURT FROM RED RIVER COUNTY
ORDER
PER CURIAM.
Applicant was convicted of possession of a controlled substance and originally received deferred adjudication community supervision. He was later adjudicated guilty and sentenced to twenty-four months' state jail 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 presumably pleaded guilty in exchange for deferred adjudication community supervision. However, the habeas record is devoid of any of the documents, with the exception of the indictment, required by Rule 73.4(b)(4) of the Texas Rules of Appellate Procedure to be included in the record forwarded to this Court by the district clerk.
Applicant contends that he was denied his right to an appeal because although he told adjudication counsel that he wanted to pursue an appeal, and although adjudication counsel gave oral notice of appeal in open court and attempted to file written notice of appeal, that notice of appeal was never filed by the district clerk. Applicant alleges that upon discovering that the written notice of appeal was not actually filed, adjudication counsel attempted to re-file notice of appeal. However that notice was untimely and Applicant's direct appeal was dismissed. Applicant alleges that he is entitled to an out-of-time appeal, either because he was denied his right to appeal due to a breakdown in the system, or because adjudication counsel performed deficiently by failing to insure that written notice of appeal was properly and timely filed by the district clerk.
Applicant has alleged facts that, if true, might entitle him to relief. Ex parte Riley, 193 S.W.3d 900 (Tex. Crim. App. 2006); Ex parte Axel, 757 S.W.2d 369 (Tex. Crim. App. 1988); Jones v. State, 98 S.W.3d 700 (Tex. Crim. App. 2003); 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 adjudication counsel to respond to Applicant's claims. In developing the record, the trial court may use any means set out in Article 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 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.
If a defendant decides to appeal his conviction, trial counsel rather than appellate counsel has the duty to ensure that written notice of appeal is filed with the trial court. Jones, 98 S.W.3d at 703.
The trial court shall first insure that the habeas record is supplemented with all of the relevant documents in this case, including the original plea papers and order of deferred adjudication, any motions to revoke or proceed to an adjudication of guilt, a transcript of the adjudication proceedings and the sentencing proceedings, the judgment adjudicating guilt, the trial court's certification of Applicant's right to appeal, and any notice of appeal filed in this case. The trial court shall then make findings of fact and conclusions of law as to whether Applicant was denied his right to an appeal, either through a breakdown in the system or because adjudication counsel failed to timely file a notice of appeal. The trial court may make any other findings and conclusions that it deems appropriate in response to Applicant's claims.
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.