Foley, Albert Jr. ( 2011 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. WR-75,982-01

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EX PARTE ALBERT FOLEY, JR., Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 16,682 IN THE 329TH DISTRICT COURT FROM WHARTON 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 writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of driving while intoxicated and sentenced to twenty-five years' imprisonment. The Thirteenth Court of Appeals affirmed his conviction. Foley v. State, 327 S.W.3d 907 (Tex. App.-Corpus Christi-Edinburg, 2010).

Applicant contends, inter alia, that his appellate counsel rendered ineffective assistance because counsel failed to timely notify Applicant that his conviction had been affirmed. He also alleges that trial counsel was ineffective for misleading him into believing that he was accepting a plea offer for six and one-half years' imprisonment, and for failing to investigate and present any videotape evidence from the incident.

Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 608 (1984); Ex parte Lemke, 13 S.W.3d 791,795-96 (Tex. Crim. App. 2000). 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 obtain a response from both trial counsel and appellate counsel regarding Applicant's claims of ineffective assistance of counsel. 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 as to whether any video or audio evidence of this incident was available, and if so, whether trial counsel investigated such evidence and whether such evidence was beneficial to the defense. The trial court shall make findings as to whether counsel informed Applicant that there was a plea deal for six and one-half years' imprisonment, and if so, whether counsel misled Applicant into believing he was accepting that plea offer. The trial court shall also make findings of fact as to whether Applicant's appellate counsel timely informed Applicant that his conviction had been affirmed. 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: June 29, 2011

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