Bilbrew, Clarence Wilbert ( 2006 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. WR-58,150-02

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EX PARTE CLARENCE WILBERT BILBREW, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 781547 IN THE 179^th JUDICIAL DISTRICT COURT

HARRIS 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 aggravated robbery, and punishment was assessed at 20 years confinement. Applicant's conviction was affirmed on appeal. Bilbrew v. State No. 01-99-00938 (Tex. App. --Houston [1^st Dist.], delivered January 11, 2001, pet.ref'd).

Applicant contends, inter alia, that he was denied effective assistance of counsel at his trial and, as a result of counsel's actions, his plea of guilty was rendered involuntary.

The record reflects that the trial court entered an order designating issues on May 4, 2004, ordering trial counsel to file an affidavit responding to thirteen separate issues involving Applicant's claims of ineffective assistance. The application was then forwarded to this court prior to the trial court having the opportunity to obtain that affidavit, and enter findings of fact and conclusions of law resolving the thirteen issues which had been designated. We believe that Applicant has alleged facts that, 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 cannot hear evidence, the trial court is the appropriate forum. The trial court may resolve those issues as set out in Tex. Code Crim. Proc. art. 11.07, § 3 (d), in that it shall order affidavits, depositions, or interrogatories from 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, after resolving all thirteen issues designated in its May 4, 2004 order, make findings of fact as to whether the Applicant received ineffective assistance of counsel, and, if so, whether counsel's actions rendered Applicant's plea involuntary. The trial court should 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.

Because this Court does not hear evidence, Ex Parte Rodriquez, 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 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 120 days of the date of this order. ⁽²⁾

IT IS SO ORDERED THIS THE 7^TH 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.