Johnson, William Henry ( 2016 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-85,832-01
EX PARTE WILLIAM HENRY JOHNSON, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 2012CRN000199-D1(A) IN THE 49TH DISTRICT COURT
FROM WEBB COUNTY
Per curiam. ALCALA , J., concurs.
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 one count of
murder and one count of aggravated assault and sentenced to life for the murder count and seventy
years’ imprisonment for the aggravated assault count, to be served concurrently. The Fourth Court
of Appeals affirmed his conviction. Johnson v. State, No. 04-13-00912-CR (Tex. App. — San
Antonio, June 10, 2015) (not designated for publication).
Applicant contends that his appellate counsel perfected appeal without notifying or
communicating with Applicant. Applicant alleges that he believed that he was representing himself
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on direct appeal, and did not know otherwise until he was notified by the court of appeals that his
conviction had been affirmed. The appellate docket indicates that the Clerk of the Fourth Court of
Appeals sent Applicant a copy of the appellate opinion and notified Applicant that the mandate had
already issued in his case after the deadline for filing a petition for discretionary review had passed.
This Court denied Applicant’s pro se motion for an extension of time to file his petition for
discretionary review on October 1, 2015.
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
shall order appellate counsel to respond to Applicant’s claims of ineffective assistance of counsel
on appeal. Specifically, appellate counsel shall state when he was appointed to represent Applicant,
and whether and when he notified Applicant that he had been appointed. Appellate counsel shall
state whether he communicated with Applicant during the pendency of the appeal, and whether he
sent Applicant copies of the appellate briefs and other filings. Appellate counsel shall state whether
he timely advised Applicant that the court of appeals had affirmed his conviction. Appellate counsel
shall state whether he sent Applicant a copy of the appellate brief and whether he advised Applicant
of his right to pursue discretionary review pro se. Appellate counsel shall also state whether he filed
a letter certifying his compliance with Rule 48.4 of the Texas Rules of Appellate Procedure in the
court of appeals. 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.
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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 informed that counsel had been appointed to represent him on direct appeal. The trial court shall
make findings as to whether appellate counsel communicated with Applicant during the pendency
of the appeal. The trial court shall make findings as to whether Applicant’s appellate counsel timely
informed Applicant that his conviction had been affirmed and that he had a right to file a pro se
petition for discretionary review. 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 2, 2016
Do not publish