Opinion
Nos. WR-62,433-01, WR-62,433-02
Delivered March 8, 2006. DO NOT PUBLISH.
On Applications for Writs of Habeas Corpus from Cause Nos. 991261 and 991262 in the 331st Judicial District Court of Travis County.
ORDER
These are applications for writs of habeas corpus which were transmitted to this Court by the clerk of the trial court pursuant to the provisions of Tex. Code Crim. Proc. art. 11.07. Applicant was convicted of the felony offenses of taking a weapon from a peace officer and assault on a peace officer, and punishment was assessed at twenty and ninety-nine years' confinement, respectively. Applicant's convictions were affirmed on appeal. Hall v. State No. 03-99-00339-CR and 03-99-00340-CR (Tex.App.-Austin, delivered March 2, 2000, no pet.). Applicant contends, inter alia, that he was denied the opportunity to file petitions for discretionary review because his appellate attorney did not timely notify him that his convictions had been affirmed or that he could seek discretionary review, pro se. The trial court has entered findings of fact or conclusions of law finding that Applicant has failed to show that there was a reasonable probability that the Court of Criminal Appeals would have granted review had Applicant filed a petition for discretionary review. However, we do not believe that those factual findings are sufficient to completely resolve the issues presented. As this Court recently noted in Ex parte Crow, 2005 Tex. Crim. App. LEXIS 2011 (Tex.Crim.App. 2005), when a defendant's right to an entire judicial proceeding has been denied, the defendant is required to show a reasonable probability that, absent counsel's errors, a particular proceeding would have occurred, but he is not required to show that the proceeding would have resulted in a favorable outcome. Because Applicant has stated facts requiring resolution and because this Court cannot hear evidence, it is necessary for the matter to be remanded to the trial court for resolution of those issues. The trial court may resolve those issues as set out in Tex. Code Crim. Proc. art. 11.07, § 3 (d), in that it may order additional affidavits, depositions, or interrogatories from appellate counsel, or it may order a hearing. In the appropriate case the trial court may rely on its personal recollection. If the trial court elects to hold a hearing, it shall first decide whether Applicant is indigent. If the trial court finds that Applicant is indigent and Applicant desires to be represented by counsel, the trial court will then, pursuant to the provisions of Tex. Code Crim. Proc. art. 26.04, appoint an attorney to represent him at the hearing. The trial court shall then make findings of fact as to whether appellate counsel ever informed Applicant specifically of his right to file a pro se petition for discretionary review. With respect to whether appellate counsel properly informed Applicant that his conviction had been affirmed on direct appeal, the record contains an affidavit from counsel stating that he believes, but does not have a record showing that he sent a copy of the court of appeals' opinion to Applicant's mother, for transmission to Applicant. The trial court shall make findings as to whether there was an explicit arrangement whereby appellate counsel would communicate with Applicant via Applicant's mother. The trial court shall also make findings as to whether Applicant ever personally received notice that his conviction had been affirmed on appeal, and if so, when. The court shall also make findings as to whether Applicant expressed his desire to file a petition for discretionary review, and if so, when. The trial court shall make any further findings of fact and conclusions of law it deems relevant and appropriate to the disposition of the application for writ of habeas corpus. Because this Court does not hear evidence, Ex Parte Rodriquez, 334 S.W.2d 294 (Tex.Crim.App. 1960), these applications for post-conviction writs of habeas corpus will be held in abeyance pending the trial court's compliance with this order. The trial court shall resolve the issues presented within ninety days of the date of this order. A supplemental transcript containing any affidavits, the transcription of the court reporter's notes from any interrogatories or hearings held, along with the trial court's findings of fact and conclusions of law, shall be returned to this Court within one hundred and twenty days of the date of this order. IT IS SO ORDERED
In the event any continuances are granted, copies of the order granting the continuance shall be provided to this Court.
Any extensions of this time period shall be obtained from this Court.