DocketNumber： WR-79,200-02
Filed Date： 3/27/2013
Status： Precedential
Modified Date： 9/16/2015
IN THE DISTRICT COURT FROM JASPER COUNTY
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 capital murder and injury to a child. He was sentenced to life imprisonment for the capital murder and twenty years' imprisonment for the injury to a child. The Ninth Court of Appeals affirmed his convictions. Desormeaux v. State, Nos. 09-10-00097-CR & 09-10-00098-CR (Tex. App.-Beaumont March 7, 2012).
Applicant contends that his appellate counsel rendered ineffective assistance because counsel failed to file a petition for discretionary review (PDR) after taking money for and informing Applicant that he would file one.
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, additional facts are needed. Pursuant to 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 appellate counsel to respond to 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 informed Applicant that he would file a petition for discretionary review and failed to do so, effectively denying him his right to a PDR. 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 shall be obtained from this Court.
Filed: March 27, 2013
Do not publish