Opinion
NO. WR-72,543-02
06-06-2018
EX PARTE KERRON LAVERN OTIS, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 93672-B IN THE CRIMINAL DISTRICT COURT FROM JEFFERSON 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 capital murder and sentenced to life imprisonment. The Ninth Court of Appeals affirmed his conviction. Otis v. State, No. 09-09-00140-CR (Tex. App.—Beaumont May 5, 2010) (not designated for publication).
Applicant contends, among other things, that appellate counsel failed to notify him that his conviction was affirmed on direct appeal.
Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 668 (1984); Ex parte Patterson, 993 S.W.2d 114, 115 (Tex. Crim. App. 1999). 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 the above claim. 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.
The trial court shall first make findings of fact and conclusions of law as to whether Applicant's claim is barred by the doctrine of laches. Before determining this, the trial court shall give Applicant an opportunity to respond and explain his delay in raising his claim. The trial court shall then determine whether appellate counsel timely notified Applicant that his conviction was affirmed and whether Applicant would have filed a petition for discretionary review but for appellate counsel's alleged deficient conduct. 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: June 6, 2018
Do not publish