Cespedes, Abdonal Delgado ( 2017 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-86,292-02
EX PARTE ABDONAL DELGADO CESPEDES, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 1177834-A IN THE 179TH DISTRICT COURT
FROM HARRIS COUNTY
Per curiam. Alcala, Newell, JJ. not participating.
ORDER
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 a writ of habeas corpus. Ex parte Young, 418
S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of aggravated sexual assault of a child
and sentenced to life imprisonment. The First Court of Appeals affirmed his conviction. Cespedes v.
State, No. 01-09-00866-CR (Tex. App.—Houston Mar. 10, 2011)(not designated for publication).
Applicant contends that his appellate counsel rendered ineffective assistance because counsel failed
to timely notify Applicant that his conviction had been affirmed and failed to timely inform him of his 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,
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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 obtain a response
from appellate counsel regarding 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, that he had a right to
filed a pro se petition for discretionary review, and that counsel was not filing such a petition on
Applicant’s behalf. 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 forwarded to this Court
within 120 days of the date of this order. Any extensions of time must be requested by the trial court and
shall be obtained from this Court.
Filed: April 5, 2017
Do not publish