DocketNumber： WR-70,670-01
Filed Date： 1/14/2009
Status： Precedential
Modified Date： 9/15/2015
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 writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of possession of a controlled substance and sentenced to 40 years' imprisonment.
Applicant alleges that trial counsel knew that he wanted to appeal as counsel informed the trial judge of this fact in open court, but nevertheless failed to perfect the appeal by filing the required notice of appeal. Further, trial counsel failed to file a motion to withdraw and was therefore Applicant's attorney of record during the time period when the notice of appeal was supposed to be filed. He alleges that appellate counsel was not appointed until after the applicable deadline to file a notice of appeal had passed. Applicant alleges that trial counsel's deficient performance resulted in an unlawful deprivation of his right to appeal. Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 608 (1984).
On November 19, 2008, this Court remanded this application to the trial court so the habeas record could be supplemented with an affidavit from trial counsel. In response to this Court's order, trial counsel filed an affidavit explaining that he mailed a letter to Applicant on December 8, 2005, advising Applicant that he had to file his pro se notice of appeal before December 15, 2005. Counsel also mailed Applicant the necessary paperwork to perfect the appeal including an affidavit of indigency, a proposed order on the affidavit of indigency, and a pro se notice of appeal. See Ex parte Axel, 757 S.W.2d 369 (Tex. Crim. App. 1988). However, the habeas record does not contain any information as to when Applicant received the letter and paperwork which counsel sent to him.
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 to General Counsel's Office of the Texas Department of Criminal Justice to obtain information from the appropriate TDCJ officials regarding the following: (1) whether the TDCJ's mail log records show that Applicant received any mail from counsel between November 17, 2005, and December 31, 2005; and, if so, (2) the date(s) Applicant received mail from counsel.
The trial court shall make findings of fact as to whether the TDCJ's mail log records show that Applicant received mail from counsel between November 17, 2005, and December 31, 2005, and, if so, what date(s) Applicant received mail from counsel. The trial judge shall make findings of fact as to whether counsel informed Applicant about the deadline to file his notice of appeal in time for him to 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. 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: January 14, 2009
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