Bailey, David Harley ( 2010 )

  IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

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  NOS. WR-60,492-01, -02, -03 & -04

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EX PARTE DAVID HARLEY BAILEY, Applicant

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ON APPLICATIONS FOR A WRIT OF HABEAS CORPUS

CAUSE NOS. 88-CR-145-B, 88-CR-142-B, 88-CR-139-B & 88-CR-144-B

IN THE 138TH DISTRICT COURT

FROM CAMERON 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 these applications for a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of two counts of injury to a child and sentenced to ten years’ imprisonment on each count. He was also convicted of two counts of aggravated sexual assault and sentenced to twenty years’ imprisonment on each count. He did not appeal his convictions.

            Applicant contends, among other things, that he was denied his right to appeal. On April 13, 2005, we denied these applications. We now reconsider these dispositions on our own motion and remand these applications for findings of fact and conclusions of law to determine whether Applicant was denied his right to appeal.  

            Applicant has alleged facts that, if true, might entitle him to relief. 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 may order trial counsel to respond to Applicant’s claim. 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 him at the hearing. Tex. Code Crim. Proc. art. 26.04.

            The trial court shall make findings of fact and conclusions of law as to whether Applicant was entitled to be in the appellate process and, if so, whether he was denied his right to appeal these convictions. 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.

            These applications 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: December 15, 2010

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