Opinion
No. WR-22,235-03
Filed: July 1, 2009. DO NOT PUBLISH.
On Application for a Writ of Habeas Corpus Cause No. F-0454679-T in the 283rd District Court from Dallas 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 aggravated robbery of an elderly person and sentenced to eighty years' imprisonment. Applicant contends that his counsel rendered ineffective assistance because counsel failed to timely file a notice of appeal. Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 608 (1984); Ex parte Axel, 757 S.W.2d 369, 371 (Tex.Crim.App. 1988). Trial counsel filed an affidavit and the trial court filed findings of fact and conclusions of law recommending that relief be denied. However, 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 may use any means set out in Tex. Code Crim. Proc. art. 11.07, § 3(d). 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. Trial counsel alleges that he filed a "pro-bono" motion for new trial. However, the docket sheets included in the habeas record contain no information after Applicant was sentenced, "advised of appeal rights," and granted pre-sentence jail time credit. The trial court shall make supplemental findings of fact as to whether trial counsel withdrew from the representation of Applicant or requested that Applicant be appointed appellate counsel. Applicant alleges that he informed the trial court of his desire to appeal the conviction. The trial court shall make additional supplemental findings of fact as to whether Applicant told the trial court he wanted an appeal and whether the trial court made an indigency finding after advising Applicant of his appellate rights or at any other time after sentencing. The trial court shall also make any other supplemental 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.