DocketNumber： WR-59,259-03
Filed Date： 11/2/2011
Status： Precedential
Modified Date： 9/16/2015
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 these applications for writs of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant pleaded guilty to one charge of possession with intent to deliver a controlled substance, and one charge of possession of a firearm by a felon. He was sentenced as a habitual felony offender to twenty-five years' imprisonment for each case.
Applicant contends that his counsel rendered ineffective assistance because counsel failed to advise Applicant of his right to appeal, and failed to timely file a notice of appeal. Although Applicant pleaded guilty pursuant to a plea agreement, there was a written motion to suppress filed and ruled on prior to trial. Applicant alleges that when he learned that he could appeal the denial of the motion to suppress, he tried to file a pro se notice of appeal, but the trial court advised him that he would need the court's permission to do so.
Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 668 (1984); Ex parte Lemke, 13 S.W.3d 791,795-96 (Tex. Crim. App. 2000). 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 obtain an affidavit from trial counsel in response to Applicant's claims of ineffective assistance of counsel for failure to advise Applicant of his appellate rights or timely file notices of appeal. The trial court may use any means set out in Tex. Code Crim. Proc. art. 11.07, § 3(d). In the appropriate case, the trial court may rely on its personal recollection. Id.
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 first supplement the habeas record with any relevant documents, including copies of the trial court's certifications of Applicant's right to appeal, Applicant's pro se notices of appeal, and any response made by the trial court thereto. If Applicant specifically waived his right to appeal matters raised in writing prior to trial, the trial court shall supplement the habeas record with copies of any documents showing such a waiver. The trial court shall then make findings of fact as to whether Applicant was denied his right to a meaningful appeal because Applicant's counsel failed to correctly advise Applicant of his right to appeal, and failed to timely file notices 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 claims for habeas corpus relief.
These applications 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: November 2, 2011
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