Tuttle, Robert Edward ( 2006 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. WR-57,654-02

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EX PARTE ROBERT EDWARD TUTTLE, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 0216743 IN THE 8^TH JUDICIAL DISTRICT COURT FROM HOPKINS 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 aggravated assault and sentenced to life imprisonment.

Applicant's counsel failed to file a timely notice of appeal, and Applicant's appeal was dismissed for want of jurisdiction. Tuttle v. State, No. 06-04-00108-CR (Tex. App. - Texarkana, September 2, 2004, no pet.). Applicant filed a writ of habeas corpus in this Court, as a result of which this Court granted Applicant the opportunity to file an out-of-time appeal. Ex Parte Tuttle, No. 75,001 (Tex. Crim. App., delivered September 15, 2004). However, Applicant now alleges that the attorney appointed to represent him in his out-of-time appeal failed to contact him to apprise him of his appointment, and failed to file a notice of appeal. The appellate mandate in Applicant's case issued on October 27, 2004. Applicant now contends that the attorney appointed to represent him in the out-of-time appeal was ineffective, and that counsel's ineffectiveness deprived him of his right to appeal this conviction.

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. 1997), the trial court is the appropriate forum for findings of fact. The trial court shall provide appellate counsel for the out-of-time appeal with the opportunity to respond to Applicant's claim of ineffective assistance of counsel on appeal. The trial court may use any means set out in Tex. Code Crim. Proc. art. 11.07, § 3(d). In the appropriate case, the trial court may rely on its personal recollection. Id.

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 as to whether Applicant was denied his right to a meaningful appeal because Applicant's appointed counsel for the out-of-time appeal failed to timely 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. 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: September 13, 2006

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