Ascencio, Antonio Jose ( 2006 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. WR-43,246-02

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EX PARTE ANTONIO JOSE ASCENCIO, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 02-5942-A IN THE 106^TH DISTRICT COURT

DAWSON COUNTY

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Per curiam.

O R D E R  

This is an application for a writ of habeas corpus that was forwarded to this Court pursuant to the provisions of Tex. Code Crim. Proc. art. 11.07. Applicant was convicted of the offense of assault against a public servant and sentenced to confinement for twenty years. No direct appeal was taken.

Applicant contends that appellate counsel was appointed and timely filed notice of appeal. Applicant contends, however, that appellate counsel failed to file a brief with the court of appeals. The trial court has not entered findings of fact or conclusions of law. 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 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 appellate counsel, or it may order a hearing. In the appropriate case the trial court may also 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 shall 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 appellate counsel timely filed notice of appeal and whether he then failed to file a brief with the court of appeals. If the trial court finds that appellate counsel failed to file either notice of appeal or a brief, it shall make findings of fact as to whether Applicant is entitled to an out-of-time appeal. 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.

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.

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.