Dunn, Robert Terrance ( 2013 )

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

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NO. WR-80,127-02

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EX PARTE ROBERT TERRANCE DUNN, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 1114177 IN THE 262^ND DISTRICT COURT

FROM HARRIS COUNTY

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            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 indecency with a child and sentenced to ten years’ imprisonment. The Fourteenth Court of Appeals affirmed his conviction. Dunn v. State, No. 14-08-00442-CR (Tex. App.—Houston [14^th Dist.] June 2, 2009) (unpublished).

            Applicant contends, among other things, that his appellate counsel rendered ineffective assistance because counsel did not timely notify Applicant that his conviction had been affirmed and did not advise him of his right to petition pro se for discretionary review.

            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 has made initial findings of fact and conclusions of law, recommending granting Applicant an out-of-time petition for discretionary review. However, the trial court’s finding that Applicant did not receive appellate counsel’s correspondence is not supported by the record, particularly in view of the trial court’s finding that appellate counsel’s affidavit is credible. The trial court shall obtain the mail logs from the Texas Department of Criminal Justice and any prison units housing Applicant from the time his conviction was affirmed through the last day he could have filed a pro-se petition for discretionary review. 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 received the correspondence that appellate counsel says he sent. 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. Should the trial court find that Applicant received the appropriate notifications in timely fashion, it shall also make findings of fact and conclusions of law addressing Applicant’s remaining habeas corpus claims.

            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: November 27, 2013

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