Franklin, Michael Grinell ( 2008 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. WR-70,670-01

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EX PARTE MICHAEL GRINELL FRANKLIN, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 04-04-5721A IN THE 286TH DISTRICT COURT FROM HOCKLEY COUNTY

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   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 writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of possession of a controlled substance and sentenced to 40 years' imprisonment.

Applicant alleges that trial counsel knew that he wanted to appeal as counsel informed the trial judge of this fact in open court, but nevertheless failed to perfect the appeal by filing the required notice of appeal. Further, trial counsel failed to file a motion to withdraw and was therefore Applicant's attorney of record during the time period when the notice of appeal was supposed to be filed. He alleges that appellate counsel was not appointed until after the applicable deadline to file a notice of appeal had passed. Applicant alleges that trial counsel's deficient performance resulted in an unlawful deprivation of his right to appeal.

Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 608 (1984). 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 provide trial counsel with the opportunity to respond to Applicant's claim of ineffective assistance of counsel in that it shall order counsel to file an affidavit addressing: (1) whether counsel believes Applicant wanted to appeal and, if so, the basis for that belief; (2) whether counsel filed a notice of appeal and, if so, the date he filed a notice of appeal; and, (3) whether counsel filed a motion to withdraw and, if so, the date he filed such a motion. The trial judge shall also supplement the habeas record with the following information: (1) whether Applicant was represented by counsel during the time period he should have filed a notice of appeal and, if so, who represented Applicant at that time; and, (2) whether the trial judge appointed appellate counsel in this case and, if so, the date appellate counsel was appointed. The trial court may use any means set out in Tex. Code Crim. Proc. art. 11.07, § 3(d). In the appropriate case, the trial court may rely on its personal recollection. Id.

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.

The trial court shall make findings of fact as to whether Applicant was denied his right to a meaningful appeal because Applicant's counsel failed to timely file a notice of appeal. Specifically, the trial judge shall make findings of fact as to whether Applicant was represented by counsel during the time period he should have filed a notice of appeal and, if so, who represented Applicant at that time. The trial judge shall make findings of fact as to whether appellate counsel was appointed in this case and, if so, when appellate counsel was appointed. 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: November 19, 2008

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