Maas, Clayton Sterling ( 2011 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

---

NO. WR-76,359-01

---

EX PARTE CLAYTON STERLING MAAS, Applicant

---

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 11049 IN THE 21ST DISTRICT COURT FROM BASTROP COUNTY

---

   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 a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of aggravated robbery and sentenced to ten years' imprisonment. He did not appeal his conviction.

Applicant contends that trial counsel failed to advise him of the deadlines for filing notice of appeal. On September 14, 2011, we remanded this application and directed the trial court to make findings of fact as to whether: (1) Applicant was entitled to be in the appellate process; (2) trial counsel advised Applicant of the deadlines for filing notice of appeal; and (3) Applicant would have filed notice of appeal had he known what the deadlines were. On remand, after holding a live evidentiary hearing, the trial court did not make a finding as to whether trial counsel advised Applicant of the deadlines for filing notice of appeal. ⁽¹⁾ The trial court also did not make a finding as to whether Applicant would have filed notice of appeal had he known what the deadlines were. The trial court found that Applicant produced no evidence that he would have done so. We are not able to determine from this finding whether Applicant would have filed notice of appeal had he known what the deadlines were.

Applicant has alleged facts that, if true, might entitle him to relief. 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 trial counsel to submit an affidavit and respond to Applicant's claim. The trial court may use any means set out in Tex. Code Crim. Proc. art. 11.07, § 3(d).

The trial court shall make further findings of fact as to whether trial counsel advised Applicant of the deadlines for filing notice of appeal and whether Applicant, had he known what the deadlines were, would have filed notice of appeal. The trial court shall then determine whether trial counsel consulted and advised Applicant "concerning meaning and effect of the judgment rendered by the court, his right to appeal from that judgment, the necessity of giving notice of appeal and taking other steps to pursue an appeal," and whether trial counsel expressed "his professional judgment as to possible grounds for appeal and their merit, and delineating advantages and disadvantages of appeal." Ex parte Axel, 757 S.W.2d 369, 374 (Tex. Crim. App. 1988); see also Jones v. State, 98 S.W.3d 700, 702-03 (Tex. Crim. App. 2003). 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: December 7, 2011

Do not publish

1. The trial court did find that it failed to advise Applicant of such deadlines. But trial counsel is the "best source of such advice," and "it is his duty as an attorney to give it." Ex parte Axel, 757 S.W.2d 369, 373 (Tex. Crim. App. 1988).