Green, Charles Ray ( 2006 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

---

NO. WR-62,282-01

---

EX PARTE CHARLES RAY GREEN, Applicant

---

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 007-1026-03-A IN THE 7^th JUDICIAL DISTRICT COURT

SMITH COUNTY

---

Per curiam.

O R D E R  

This is an application for a writ of habeas corpus which was transmitted to this Court pursuant to the provisions of Tex. Code Crim. Proc. art. 11.07. Applicant was convicted of the offense of burglary of a habitation, and punishment was assessed at thirty-five years confinement. Applicant's conviction was affirmed on appeal. Green v. State No. 12-04-00101-CR (Tex. App. --Tyler, delivered May 28, 2004, no pet.).

Applicant contends, inter alia, that he was deprived of his meaningful right to a direct appeal because of the ineffective assistance of his counsel. Specifically, Applicant contends that, after he requested an appeal be filed, counsel referred to him with a racial epithet, and then failed to timely file notice of appeal.

The trial court has entered findings of fact and conclusions of law recommending that relief be denied. However, the trial court's recommendation is based upon the affidavit of appellate counsel who was not appointed until well after any deadline for filing notice of appeal had passed. The record does not contain an affidavit from trial counsel who was not granted permission to withdraw until May 10, 2004, two days before appellate counsel was appointed, and the subject of Applicant's allegations. Therefore, it is this Court's opinion that additional facts need to be developed and because this Court cannot hear evidence, the trial court is the appropriate forum. The trial court may resolve those issues as set out in Tex. Code Crim. Proc. art. 11.07, § 3 (d), in that it shall order an affidavit from trial counsel, or it may order a hearing.

If the trial court elects to hold a hearing, the court 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.

Following receipt of additional information, the trial court shall make findings of fact as to whether Applicant was deprived of his meaningful right to a direct appeal because of the ineffective assistance of his counsel. 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 Rodriquez, 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. Resolution of the issues shall be accomplished by the trial court within 90 days of the date of this order. ⁽¹⁾ 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. ⁽²⁾

IT IS SO ORDERED THIS THE TWENTY-FOURTH DAY OF MAY, 2006.

EN BANC

DO NOT PUBLISH   

1.

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

2.

Any extensions of this time period should be obtained from this Court.