Britton, Joseph Richard ( 2006 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. WR-64,550-01

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EX PARTE JOSEPH RICHARD BRITTON, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NUMBER F-2004-0921-B IN THE 158^TH JUDICIAL DISTRICT COURT

DENTON COUNTY

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Per curiam.

O R D E R  

This is an application for a writ of habeas corpus which was transmitted to this Court pursuant to the provisions of Tex. Code Crim. Proc. art. 11.07. Applicant was convicted of the offense of sexual performance by a child, and punishment was assessed at eight (8) years' confinement. Applicant appeal his conviction but the appeal was dismissed. Britton v. State, No. 02-05-0010-CR (Tex. App. -- Fort Worth, delivered February 24, 2005, no pet.).

Applicant contends that he was denied the right to appeal because trial counsel informed him that he could not appeal from his conviction in cause number F-2004-0922-B, and this advice led him to believe that any appeal from his convictions would be futile.

The trial court has not entered findings of fact or conclusions of law. We believe that Applicant has alleged facts which, if true, might entitle him to relief. Therefore, it is this Court's opinion that additional facts need to be developed and because this Court does not hear evidence, the trial court is the appropriate forum. The trial court shall resolve those issues as set out in Tex. Code Crim. Proc. art. 11.07, § 3 (d), in that it may order affidavits, depositions, or interrogatories from trial counsel, or it may order a hearing. In the appropriate case the trial court may rely on its personal recollection.

If the trial court elects to hold a hearing, the court shall first decide whether Applicant is indigent. If the trial court finds that Applicant is indigent and Applicant desires to be represented by counsel, the trial court will then, pursuant to the provisions of Tex. Code Crim. Proc. art. 26.04, appoint an attorney to represent him at the hearing.

Following receipt of additional information, the trial court shall make findings of fact as to whether trial counsel informed Applicant that he could not appeal from his conviction in cause number F-2004-0922-B, and whether such advice led Applicant to forebear filing a timely notice of appeal in this cause. The trial court shall also make any further findings of fact and conclusions of law it deems relevant and appropriate to the disposition of the application for writ of habeas corpus. The trial court shall supplement the habeas record with copies of all documents upon which its findings are based.

Because this Court does not hear evidence, Ex Parte Rodriguez, 334 S.W.2d 294 (Tex. Crim. App. 1960), this application for a post-conviction writ of habeas corpus will be held in abeyance pending the trial court's compliance with this order. Resolution of the issues shall be accomplished by the trial court within ninety (90) days of the date of this order. ⁽¹⁾ 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 one hundred twenty (120) days of the date of this order. ⁽²⁾

IT IS SO ORDERED THIS THE 7th DAY OF JUNE, 2006.

EN BANC

DO NOT PUBLISH   

1.

In the event any continuances are granted, copies of the order granting the continuance should be provided to this Court.

2.

Any extensions of this time period should be obtained from this Court.