DocketNumber： WR-80,842-01
Filed Date： 4/2/2014
Status： Precedential
Modified Date： 9/16/2015
IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-80,842-01
EX PARTE RICKY LEE SMALL, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 1267577-A IN THE 262nd DISTRICT COURT
FROM HARRIS COUNTY
Per curiam.
O R D E R
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 possession of a controlled substance and sentenced to thirteen years’ imprisonment. The First Court of Appeals affirmed his conviction. Small v. State, No. 01-10-00983-CR (Tex. App.—Houston [1st Dist.], delivered July 7, 2011, no pet.).
Applicant contends that his appellate counsel rendered ineffective assistance because counsel failed to timely notify Applicant that his conviction had been affirmed. The trial court has recommended this Court deny relief.
The habeas record includes a sworn affidavit from appellate counsel stating, in pertinent part:
I did advise Mr. Smalls that his appeal had been denied and his conviction had been affirmed. I also enclosed a copy of the opinion. I explained that he had the right to file a pro se, second appeal called a Petition for Discretionary Review with the Fourteenth Court of Appeals. I indicated that he only had thirty days from the date of the opinion to file his PDR. I further explained that because of the time factor, he should write to the Court of Criminal Appeals, where his PDR would ultimately be heard, and request an extension of time to file the PDR.
However, Applicant’s habeas counsel filed a supplemental response with the trial court that states, in pertinent part:
On January 21, 2014, this office obtained a copy of [appellate counsel’s] response (filed on December 11, 2013) wherein he purportedly “explained that [Applicant] had the right to file a pro se, second appeal called a Petition for Discretionary Review with the Fourteenth Court of Appeals.” Applicant disputes [appellate counsel’s] assertion. As demonstrated by the First Court of Appeals “Case Information” for Case No. 01-10-00983-CR, see Exhibit A, attached hereto. [Appellate counsel] did not comply with the notification requirements of Rule 48.4, Rules of Appellate Procedure. For the relevant time period, Applicant was continuously confined at the Darrington Unit (as represented by the unit designation “DA”). See Exhibit B attached hereto. Moreover, Darrington Unit Mailroom logbook documents no incoming correspondence from [appellate counsel] to Applicant during the relevant time period. See Exhibit C attached hereto.
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. 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 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).
It appears that Applicant is currently represented by counsel. However, if this is no longer true and 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 resolving the following issues:
A. Did appellate counsel comply with the requirements of Rule 48.4 of the Texas Rules of Appellate Procedure? If not, why not?
B. If appellate counsel did not inform the Applicant of his rights in a timely manner per certified mail, did he inform him in another manner? And, if so, did he notify him of the correct place to file his pro se PDR?
C. Was appellate counsel’s statement in his sworn affidavit correct, inaccurate, or perjurious?
D. Is the Applicant entitled to an out-of-time 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: April 2, 2014
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