Johnson, Jamar Antwone ( 2017 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-61,236-02
EX PARTE JAMAR ANTWONE JOHNSON, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. W95-01160-M(B) IN THE 194TH DISTRICT COURT
FROM DALLAS COUNTY
Per curiam.
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
robbery and sentenced to forty-five years’ imprisonment.
Applicant filed a previous habeas application, in which he sought an out-of-time petition for
discretionary review. Such claims do not constitute a challenge to the merits of a conviction so as
to trigger a bar to subsequent applications under Article 11.07, Section 4 of the Texas Code of
Criminal Procedure. Applicant’s initial application was denied because he had not filed a direct
appeal in this case, and therefore did not have any basis upon which to petition this Court for
discretionary review. In this application, Applicant contends that his counsel rendered ineffective
assistance because counsel failed to advise him about his appellate rights and failed to timely file a
notice of appeal, despite Applicant’s expression of a desire to appeal.
Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington,
466 U.S. 668 (1984); Ex parte Patterson, 993 S.W.2d 114, 115 (Tex. Crim. App. 1999); Ex parte
Axel, 757 S.W.2d 369 (Tex. Crim. App. 1988). 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 to respond to
Applicant’s claim of ineffective assistance of counsel. 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
was advised of his right to appeal, and shall supplement the record with a copy of the trial court’s
certification of defendant’s right to appeal. The trial court shall make findings of fact as to whether
Applicant expressed a desire to appeal, and if so, whether trial counsel filed a notice of appeal or
asked that appellate counsel be appointed to represent Applicant on appeal. The trial court shall
make findings of fact as to whether trial counsel ever officially withdrew from the representation in
this case. The trial court shall make findings of fact and conclusions of law as to whether Applicant
was denied his right to a meaningful appeal because Applicant’s counsel failed to timely file a notice
of appeal. 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 12, 2017
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