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IN THE COURT OF CRIMINAL APPEALS OF TEXAS
NO. 64,337-01
EX PARTE ANDRES CANTU, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 2004-407,805-A
IN THE 364TH JUDICIAL DISTRICT COURT
FROM LUBBOCK COUNTY
Per Curiam.
O R D E R
This is a post-conviction application for a writ of habeas corpus forwarded to this Court pursuant to Tex. Code Crim. Proc., art. 11.07, § 3, et seq. Applicant was convicted of the felony offense of aggravated robbery, and punishment was assessed at confinement for eighteen years. No direct appeal was taken.
Applicant contends that he was denied his right to appeal. The trial court entered findings of fact and conclusions of law recommending that Applicant be granted an out-of-time appeal. The trial court based its recommendation upon the affidavit or affidavits of counsel, however, those affidavits were not made a part of the habeas record.
Applicant has alleged facts that, if true, might entitle him/her to relief. Strickland v. Washington, 466 U.S. 608 (1984); Ex parte Lemke, 13 S.W.3d 791, 795-96 (Tex. Crim. App. 2000). The trial court shall either forward previously submitted affidavits from counsel or provide counsel with another opportunity to respond to applicant's claim of ineffective assistance of counsel. The trial court may use any means set out in Tex. Code Crim. Proc., art. 11.07, § 3(d).
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.
If necessary, the trial court shall make additional findings of facts as to whether applicant was denied his right to a meaningful appeal because applicant's counselor failed to timely file a notice of appeal. The trial court may 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 obtained affidavits or testimony of counsel and resolved any further fact issues, if any. 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.
DO NOT PUBLISH
DELIVERED: May 24, 2006
Document Info
Docket Number: WR-64,337-01
Filed Date: 5/24/2006
Precedential Status: Precedential
Modified Date: 9/15/2015