Opinion
NO. WR-86,688-01
05-17-2017
EX PARTE ANDRE CHUARON HARLAND, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 1313915-A IN THE 248th DISTRICT COURT FROM HARRIS 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 this application for a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of aggravated assault of a public servant and sentenced to forty years' imprisonment. The Fourteenth Court of Appeals affirmed his conviction. Harland v. State, No. 14-12-00569-CR (Tex. App.—Houston [14th Dist.] Aug. 27, 2013) (not designated for publication).
Applicant contends that his appellate counsel rendered ineffective assistance because counsel failed to timely notify Applicant that his conviction had been affirmed. In support of his allegation that counsel did not notify him of the appellate court's affirmance of his conviction in August of 2013, Applicant has included alleged correspondence from counsel sent to him in 2016, stating that "[counsel] received a notice from the Court of Appeals that you did not know what happened in your case. I mailed a copy of [sic] you back in 2012." It should also be noted the appellate court's docket sheet in this cause does not reflect that counsel complied with the requirements of TEX. R. APP. P. 48.4.
The trial court recommends this application be dismissed pursuant to TEX. R. APP. P. 73.1. However, subsequent to the trial court's recommendation, an amended application was filed that is complaint with that rule.
Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 668 (1984); Ex parte Wilson, 956 S.W.2d 25 (Tex. Crim. App. 1997). 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 appellate counsel to respond to Applicant's claim of ineffective assistance of counsel on appeal. 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's appellate counsel timely informed Applicant that his conviction had been affirmed. 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. 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 must be requested by the trial court and shall be obtained from this Court. Filed: May 17, 2017
Do not publish