Burch, Wesley Earl ( 2006 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. WR-64, 807-01

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EX PARTE WESLEY EARL BURCH, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 16,980 IN THE 411^th JUDICIAL DISTRICT COURT

POLK COUNTY

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Per Curiam.

O R D E R  

   This is an application for a writ of habeas corpus which was transmitted to this Court by the clerk of the trial court pursuant to the provisions of Tex. Code Crim. Proc. art 11.07. Applicant was convicted of possession of a controlled substance, and punishment was assessed at fifty years confinement. Applicant's conviction was affirmed on appeal. Burch v. State No. 09-03-574-CR (Tex. App. --Beaumont, delivered, August 31, 2004, no pet..).

Applicant contends, inter alia, that he was deprived of his right to file a pro se petition for discretionary review due to the ineffective assistance of his appellate counsel. Specifically, the Applicant contends that counsel did not timely advise him of the appellate court's decision, or of his right to pursue discretionary review on his own.

The trial court has entered an order recommending that relief be denied. However, the trial court's order does not directly address the Applicant's claim. Applicant has stated facts requiring resolution. Because this Court cannot hear evidence, it is necessary for the matter to be remanded to the trial court for resolution. This trial court shall resolve the factual issues as set out in Tex. Code Crim. Proc. art 11.07, § 3 (d), in that it shall order affidavits from counsel, or it may hold a hearing. In the appropriate case, the trial court may rely on personal recollection.

If the trial court elects to hold a hearing, the court shall first decide whether Applicant is indigent. If the 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 the Applicant was deprived of his right to file a pro se petition for discretionary review due to the ineffective assistance of his appellate 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, 169 Tex.Cr.R. 367, 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. The trial court shall resolve the issues presented within 90 days of the date of this order. ⁽¹⁾ A supplemental transcript containing all affidavits, the transcription of the court reporter's notes from any interrogatories or hearings held, along with the trial court's 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 13^th day of September, 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.