Opinion
No. 62,702-01
January 25, 2006. DO NOT PUBLISH.
On Application for a Writ of Habeas Corpus, in Cause No. 00-CR-929-D, from the 103rd District Court of Cameron County.
ORDER
This is an application for a writ of habeas corpus which was 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 offense of aggravated assault and was sentenced to confinement for fifteen years. Applicant's conviction was affirmed on appeal. Meza v. State, No. 13-01-141-CR (Tex.App.-13th, delivered August 22, 2002). Applicant alleges factual and legal insufficiency, a denial of due process, prosecutorial misconduct, and ineffective assistance of trial and appellate counsel. The trial court has entered findings of fact or conclusions of law. However, we do not believe that those factual findings are sufficient to completely resolve the issues presented. It appears that the clerk prematurely forwarded the instant application to this Court before the trial court entered findings of fact regarding trial counsel's affidavit or obtained appellate counsel's affidavit. 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 affidavits, depositions, or interrogatories from trial and 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 should then make findings of fact as to whether trial counsel was ineffective. In addition, after obtaining appellate counsel's affidavit, the trial court should make findings of fact as to whether appellate counsel was ineffective. The trial court should also 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), this application for a post-conviction writ 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 90 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 120 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 should be provided to this Court.
Any extensions of this time period should be obtained from this Court.