Opinion
No. WR-71,030-01
Filed: December 10, 2008. DO NOT PUBLISH.
On Application for A Writ of Habeas Corpus Cause No. 2006CR0452-D3(A) in the 341st District Court from Webb County.
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 writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex.Crim.App. 1967). Applicant was convicted of attempted capital murder and sentenced to life imprisonment. He did not appeal his conviction. Applicant contends that his trial counsel rendered ineffective assistance because counsel failed to timely file a notice of appeal. He further asserts that his appellate attorney abandoned him during the appeal's process. The trial judge has entered findings of fact and conclusions of law recommending that relief by granted in the form of an out-of-time appeal. The trial judge found inter alia that trial counsel failed to file a timely notice of appeal and that Applicant therefore was deprived of his right to appeal. Strickland v. Washington, 466 U.S. 608 (1984). The trial judge also found that appellate counsel did not represent Applicant on direct appeal because the agreement between Bexar County Public Defender's Office and Webb County had been terminated. The trial judge's findings of fact and conclusions of law are supported by the record. However, we find that further evidence is needed to resolve Applicant's claim. 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 provide trial counsel and appellate counsel with the opportunity to respond to Applicant's claim of ineffective assistance of counsel. The trial court may use any means set out in Tex. Code Crim. Proc. art. 11.07, § 3(d) in that it shall order trial counsel to file affidavit addressing: (1) whether counsel was aware that Applicant desired to appeal and, if so, (2) why counsel failed to perfect the appeal by filing a timely notice of appeal. The trial court shall order appellate counsel to file an affidavit addressing: (1) whether counsel was notified that he had been appointed to represent Applicant on direct appeal and, if so; (2) whether the deadline to file a timely notice of appeal had already passed when counsel was notified of said appointment; and, (3) why counsel failed to perfect the appeal by filing a timely notice of appeal. In the appropriate case, the trial court may rely on its personal recollection. Id. 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 as to whether Applicant was denied his right to a meaningful appeal because Applicant's counsel failed to timely file a notice of appeal. Specifically, the trial court shall make findings of fact as to whether trial counsel knew that Applicant desired to appeal and if so, why counsel failed to file a timely notice of appeal. The trial court shall also make findings of fact as to whether appellate counsel was notified that he had been appointed to represent Applicant on direct appeal and, if so, whether the deadline to file a notice of appeal had already passed when counsel was notified of said appointment. 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. If any continuances are granted, a copy of the order granting the continuance shall be sent to this Court. 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 returned to this Court within 120 days of the date of this order. Any extensions of time shall be obtained from this Court.