Smith, Stephen Ray ( 2007 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. WR-67,298-01

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EX PARTE STEPHEN RAY SMITH, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. W9912-1 IN THE 355^TH DISTRICT COURT FROM HOOD COUNTY

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   Per curiam.

O R D E R  

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 theft and sentenced to ninety-nine (99) years' imprisonment. The Second Court of Appeals dismissed his appeal for want of jurisdiction. See Smith v. State, No 2-06-262-CR (Tex. App.- Fort Worth, 2006 no pet.)

Applicant contends inter alia that his appellate counsel Grady Swindle rendered ineffective assistance because counsel failed to timely file a notice of appeal.

The trial court has entered findings of fact and conclusions of law recommending that relief be granted. The trial court found that Applicant was convicted on May 24, 2006, and that the trial court appointed Grady Swindle to represent Applicant on appeal on May 30, 2006. The trial court found that Swindle filed the notice of appeal and a motion for a new trial on July 21, 2006, which was after the deadline to file a notice of appeal had passed. The trial court found that the Second Court of Appeals dismissed Applicant's appeal because of the untimely notice of appeal. The trial court concluded that Applicants was denied the effective assistance of appellate counsel and recommended that relief be granted. The Second Court of Appeals stated in its memorandum opinion that it notified Appellant about the untimely notice of appeal on July 31, 2006, and requested that Appellant file a response showing grounds for continuing the appeal. However, no such response was filed.

Applicant has alleged facts that, if true, might entitle his to relief. Strickland v. Washington, 466 U.S. 608 (1984); Ex parte Lemke, 13 S.W.3d 791,795-96 (Tex. Crim. App. 2000). In these circumstances, additional facts are needed. As we held in Ex parte Rodriguez, 334 S.W.2d 294, 294 (Tex. Crim. App. 1997), the trial court is the appropriate forum for findings of fact. The trial court shall provide counsel with the opportunity to respond to Applicant's claim of ineffective assistance of counsel on appeal. The trial court may use any means set out in Tex. Code Crim. Proc. art. 11.07, § 3(d) in that it shall order Gary Swindle to file an affidavit responding to Applicant's allegations of ineffective assistance of counsel.

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 why counsel failed to file a timely notice of appeal. The trial court shall also make findings of fact as to why counsel failed to file a response to the Second Court of Appeal's request to show grounds for continuing the appeal. The trial court shall also 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. 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.

Filed: April 25, 2007

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