Rush, Deon ( 2010 )

  IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

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  NOS. WR-74,911-01 & -02

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EX PARTE DEON RUSH, Applicant

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ON APPLICATIONS FOR A WRIT OF HABEAS CORPUS

CAUSE NOS. 16,022 & 16,024 IN THE 506TH DISTRICT COURT

FROM GRIMES 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 burglary of a habitation and sentenced to eighteen years’ imprisonment on each count. The Fourteenth Court of Appeals dismissed his appeals. Rush v. State, Nos. 14-09-00434-CR & 14-09-00453-CR (Tex. App.–Houston [14th Dist.] 2009, no pet.).

            Applicant contends that counsel rendered ineffective assistance because he failed to file timely notices of appeal. Applicant also contends that counsel advised him to plead guilty because his convictions would be reversed on appeal.

            Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 608 (1984); Ex parte Lemke, 13 S.W.3d 791,795-96 (Tex. Crim. App. 2000). 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 order counsel, David S. Barron, to respond to Applicant’s claims. 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 denied his right to meaningful appeals because counsel failed to file timely notices of appeal. The trial court shall also make findings and conclusions as to whether Applicant’s guilty pleas were rendered involuntary because counsel advised Applicant that his convictions would be reversed on appeal. The trial court shall also make any other findings and conclusions that it deems relevant and appropriate to the disposition of Applicant’s claims 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 8, 2010

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