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 2012-06

Behis, Isal ( 2012 )


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  • IN THE COURT OF CRIMINAL APPEALS

    OF TEXAS



    NOS. WR-77,642-01 & WR-77,642-02

    EX PARTE ISAL BEHIS, Applicant


    ON APPLICATIONS FOR WRITS OF HABEAS CORPUS

    CAUSE NOS. 924287-A & 931609-A IN THE 185TH DISTRICT COURT

    FROM HARRIS COUNTY

    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 writs of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted in two intoxication manslaughter cause numbers and sentenced to fifteen years' imprisonment for each cause. The First Court of Appeals affirmed his convictions. Behis v. State, Nos. 01-03-00747-CR & 01-03-00748-CR (Tex. App.-Houston [1st] November 10, 2004).

    Applicant contends, inter alia, that his appellate counsel rendered ineffective assistance because counsel failed to timely notify Applicant that his conviction had been affirmed and that he had a right to file a pro se petition for discretionary review.

    Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 668 (1984); Ex parte Wilson, 956 S.W.2d 25 (Tex. Crim. App. 1997). 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 appellate counsel to respond to Applicant's claim of ineffective assistance of counsel on appeal. 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.

    The trial court shall make findings of fact and conclusions of law as to whether Applicant's appellate counsel timely informed Applicant that his conviction had been affirmed and that he had a right to file a pro se petition for discretionary review. 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. 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: June 13, 2012

    Do not publish