Opinion
WR-94,443-01
07-26-2023
EX PARTE JAMES PAUL RICHARDS, IV, Applicant
Do not publish
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 2021-0319-CR IN THE 83RD DISTRICT COURT FROM VAL VERDE COUNTY
ORDER
PER CURIAM.
Applicant pleaded guilty to aggravated assault and was sentenced to thirty-five years' imprisonment. Although the trial court certified that he had no right to appeal, Applicant apparently filed a timely notice of appeal. For reasons that are not clear from the record, there is no indication that Applicant's notice of appeal was forwarded to any court of appeals as required by Rule 25.2(e) of the Texas Rules of Appellate Procedure, or that appellate counsel was ever appointed to represent Applicant.
Applicant filed this application for a writ of habeas corpus in the county of conviction, and the district clerk forwarded it to this Court. See Tex. Code Crim. Proc. art. 11.07. On April 12, 2023, this Court remanded this matter to the trial court to obtain documents and copies of the trial court's findings of fact and conclusions of law, which were not included in the record originally sent to this Court. On July 7, 2023, this Court received the supplemental record from Val Verde County. The supplemental record includes the trial court's findings of fact, conclusions of law and recommendation to dismiss the application for want of jurisdiction because no appellate mandate had issued at the time Applicant filed his application in the district court. However, there is no indication that Applicant's direct appeal is actually pending in any court of appeals.
Accordingly, the record should be developed. The trial court is the appropriate forum for findings of fact. Tex. Code Crim. Proc. art. 11.07, § 3(d). In developing the record, the trial court may use any means set out in Article 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 wants to be represented by counsel, the trial court shall appoint counsel to represent at the hearing. See Tex. Code Crim. Proc. art. 26.04. If counsel is appointed or retained, the trial court shall immediately notify this Court of counsel's name.
The trial court shall make findings of fact and conclusions of law as to whether the District Clerk of Val Verde County forwarded the notice of appeal filed by trial counsel on October 17, 2022, and the corrected notice of appeal filed by trial counsel on October 18, 2022, to the court of appeals as required by Rule 25.2(e) of the Texas Rules of Appellate Procedure. If the District Clerk did forward the notice(s) to the court of appeals, the trial court shall make findings as to when Applicant's appeal began in the court of appeals, whether Applicant is represented by appellate counsel, and what the appellate cause number and status of any such appeal is in the court of appeals. If the District Clerk of Val Verde County did not forward Applicant's notice(s) of appeal to the court of appeals, the trial court shall make findings as to why not, and shall order the District Clerk to immediately forward the notice(s) of appeal to the appropriate court of appeals and provide proof of such action. The trial court shall also make findings as to whether trial counsel was permitted to withdraw from the representation after filing notice of appeal, and if so, whether appellate counsel has been appointed to represent Applicant.
The trial court shall make findings of fact and conclusions of law within thirty days from the date of this order. The district clerk shall then immediately forward to this Court the trial court's findings and conclusions and the record developed on remand, including, among other things, affidavits, motions, objections, proposed findings and conclusions, orders, and transcripts from hearings and depositions. See Tex.R.App.P. 73.4(b)(4). Any extensions of time must be requested by the trial court and obtained from this Court.