Johnson, Heath ( 2007 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

---

NO. WR-68,882-01

---

EX PARTE HEATH JOHNSON, Applicant

---

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 007-80174-97-A IN THE 7^TH JUDICIAL DISTRICT COURT FROM SMITH 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 writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant pleaded guilty to escape, and originally received ten years' deferred adjudication community supervision. His supervision was later revoked, and his guilt adjudicated, and he was sentenced to six years' imprisonment.

Applicant filed a timely notice of appeal, but did not make a claim of indigence. Because no arrangements had been made for payment to the trial clerk for preparation of the reporter's record, notice was sent to Applicant that his appeal would be dismissed unless proof of full payment to the clerk was provided on or before May 4, 2006. Applicant's appeal was dismissed on June 7, 2006, and the appellate mandate issued on July 27, 2006.

In this writ, Applicant contends that the dismissal of his appeal was erroneous, because payment for preparation of the reporter's record was sent and received by the district clerk. Applicant has alleged facts that, if true, might entitle him to relief. In these circumstances, additional facts are needed. As we held in Ex parte Rodriguez, 334 S.W.2d 294, 294 (Tex. Crim. App. 1997), the trial court is the appropriate forum for findings of fact. 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 make findings of fact as to whether Applicant was denied his right to a meaningful appeal through no fault of his own. The trial court shall make findings as to whether payment for preparation of the reporter's record was received by the trial clerk, and if so, the date upon which such payment was received. 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. 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: December 12, 2007

Do not publish