Opinion
NO. WR-90,478-01
10-30-2019
EX PARTE CHRISTOPHER LYNE JOHNSON, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 369CR-15-32395-A IN THE 369TH DISTRICT COURT FROM ANDERSON 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 and sentenced to eight years' imprisonment. The Twelfth Court of Appeals affirmed his conviction. Johnson v. State, No. 12-17-00159-CR (Tex. App.—Tyler Aug. 31, 2018) (not designated for publication).
Applicant contends that although he retained and paid appellate counsel to file a petition for discretionary review, counsel failed to do so. He also contends that the court of appeals affirmed his conviction on August 31, 2018, and that he did not receive notice from appellate counsel until September 12, 2018, depriving him of the opportunity to timely file a pro se petition for discretionary review.
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 Exparte 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 the above claims. 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 him at the hearing. TEX. CODE CRIM. PROC. art. 26.04.
After reviewing appellate counsel's response, the trial court shall make findings of fact and conclusions of law as to whether (1) Applicant retained and paid appellate counsel to file a petition for discretionary review; (2) appellate counsel complied with his duties as set out in Ex parte Wilson, 956 S.W.2d 25 (Tex. Crim. App. 1997); and (3) Applicant is entitled to the opportunity to file an out-of-time petition for discretionary review. 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 claims 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: October 30, 2019
Do not publish