Foster, Anthony Charles Jr. ( 2010 )

  IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

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  NOS. WR-69,082-04, -05 & -06

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EX PARTE ANTHONY CHARLES FOSTER, Applicant

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ON APPLICATIONS FOR A WRIT OF HABEAS CORPUS

CAUSE NOS. 18,072-A, 17,816-A & 17,862-A IN THE 47TH DISTRICT COURT

FROM RANDALL 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 three counts of aggravated robbery and sentenced to thirty-five years’ imprisonment on each count.

            Applicant contends that his counsel rendered ineffective assistance because he failed to advise Applicant of his right to appeal and to file timely notices of 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 may be 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. If the trial court concludes that the factual basis of Applicant’s claim in the -05 and -06 applications was not previously available, see Tex. Code Crim. Proc. art. 11.07, § 4(a)(1), it shall order trial counsel to respond to Applicant’s claim in these causes. 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 him at the hearing. Tex. Code Crim. Proc. art. 26.04.

            The trial court shall first make findings of fact and conclusions of law as to whether the factual basis of Applicant’s claim in the -05 and -06 applications was previously available. If the trial court determines that the factual basis was not available, it shall determine, after obtaining a response from counsel, whether Applicant was denied his right to meaningful appeals in these causes. The trial court shall also determine whether Applicant was denied his right to a meaningful appeal in cause number 18,072-A. The trial court shall 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: September 15, 2010

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