Gibbs, Larry Donnell ( 2016 )


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  •              IN THE COURT OF CRIMINAL APPEALS
    OF TEXAS
    NO. WR-85,821-01
    EX PARTE LARRY DONNELL GIBBS, Applicant
    ON APPLICATION FOR A WRIT OF HABEAS CORPUS
    CAUSE NO. 2015CRR001320-D1(A) IN THE 49TH DISTRICT COURT
    FROM WEBB COUNTY
    Per curiam. ALCALA , J., filed a concurring opinion.
    ORDER
    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 two counts of
    robbery and sentenced to forty-seven years’ imprisonment on each count.
    Applicant contends, among other things, that trial counsel failed to file a notice of appeal.
    Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 
    466 U.S. 668
    (1984); Ex parte Patterson, 
    993 S.W.2d 114
    , 115 (Tex. Crim. App. 1999); Ex parte Axel,
    
    757 S.W.2d 369
    (Tex. Crim. App. 1988). 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
    2
    appropriate forum for findings of fact. The trial court shall order trial counsel to respond to
    Applicant’s claim. 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
    was denied his right to a meaningful appeal because trial counsel failed to file a notice of appeal.
    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. 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 must
    be requested by the trial court and shall be obtained from this Court.
    Filed: November 23, 2016
    Do not publish