Opinion
NO. WR-85,644-01
09-21-2016
EX PARTE JAMES DAVID HAYNES, JR., Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 14F0359-005-A IN THE 5TH DISTRICT COURT FROM BOWIE 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 three counts of aggravated sexual assault and sentenced to imprisonment for three terms of life. The Sixth Court of Appeals dismissed his appeal for want of jurisdiction. Haynes v. State, No. 06-15-00029-CR (Tex. App.—Texarkana Apr. 7, 2015) (not designated for publication).
Applicant contends that because trial counsel filed an untimely motion for new trial, his notice of appeal was also untimely. Applicant contends that he was denied his right to an appeal. The trial court made findings of fact and conclusions of law and recommended that we grant Applicant an out-of-time appeal. There is no response from trial counsel in the record, however, and he should ordinarily be given the opportunity to respond before being found ineffective. Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003).
Accordingly, the trial court shall order trial counsel to respond. The trial court may use any means set out in TEX. CODE CRIM. PROC. art. 11.07, § 3(d).
Applicant appears to be represented by counsel. If he is not and 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 him at the hearing. TEX. CODE CRIM. PROC. art. 26.04.
After reviewing trial counsel's response, the trial court shall make further findings of fact and conclusions of law as to whether Applicant was denied his right to 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. 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. Filed: September 21, 2016
Do not publish