Parker, Delmar Lee

  

  IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

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NO. WR-63,716-01

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EX PARTE DELMAR LEE PARKER, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS

IN CAUSE NO. CR20,703 IN THE 20^TH DISTRICT COURT

FROM MILAM COUNTY

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Per curiam.   O R D E R  

This is an application for a writ of habeas corpus which was transmitted to this Court by the clerk of the trial court pursuant to the provisions of Tex. Code Crim. Proc. art. 11.07. Applicant was convicted of the offense of possession of a controlled substance, and punishment was assessed at twenty (20) years' confinement. Applicant's conviction was affirmed on appeal. Parker v. State No. 03-04-00133-CR (Tex. App. --Austin, delivered October 24, 2005, no pet.).

Applicant contends that he has been denied his right to petition for discretionary review because he never received notice of the decision on appeal from appellate counsel.

The trial court has entered findings of fact or conclusions of law finding that Applicant has alleged no fact supported by the record which entitles him to relief. However, we do not believe that those factual findings are sufficient to completely resolve the issues presented. Because Applicant has stated facts requiring resolution and because this Court cannot hear evidence, it is necessary for the matter to be remanded to the trial court for resolution of those issues. The trial court may resolve those issues as set out in Tex. Code Crim. Proc. art. 11.07, § 3 (d), in that it may order affidavits, depositions, or interrogatories from mail room personnel at the Texas Department of Criminal Justice - Correctional Institutions Division and from defense counsel, or it may order a hearing. In the appropriate case the trial court may rely on its personal recollection.

If the trial court elects to hold a hearing, it shall first decide whether Applicant is indigent. If the trial court finds that Applicant is indigent and Applicant desires to be represented by counsel, the trial court will then, pursuant to the provisions of Tex. Code Crim. Proc. art. 26.04, appoint an attorney to represent him at the hearing.

The trial court shall then make findings of fact as to whether appellate counsel sent notice of the right to petition for discretionary review and the decision on appeal to Applicant's correct address and TDCJ-CID number, when such notices were sent, and whether and when Applicant actually received such notices. The trial court shall also make any further findings of fact and conclusions of law it deems relevant and appropriate to the disposition of the application for writ of habeas corpus.

Because this Court does not hear evidence, Ex Parte Rodriguez, 334 S.W.2d 294 (Tex. Crim. App. 1960), this application for a post-conviction writ of habeas corpus will be held in abeyance pending the trial court's compliance with this order. The trial court shall resolve the issues presented within ninety (90) days of the date of this order. ⁽¹⁾ A supplemental transcript containing any affidavits, the transcription of the court reporter's notes from any interrogatories or hearings held, along with the trial court's findings of fact and conclusions of law, shall be returned to this Court within one hundred twenty (120) days of the date of this order. ⁽²⁾

IT IS SO ORDERED THIS THE 8^TH DAY OF FEBRUARY, 2006.

EN BANC

DO NOT PUBLISH

1. In the event any continuances are granted, copies of the order granting the continuance shall be provided to this Court.

2. Any extensions of this time period shall be obtained from this Court.