Foxworth, Jimmie Howard ( 2006 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. WR-64,692-01

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EX PARTE JIMMIE HOWARD FOXWORTH, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS

TRIAL COURT CAUSE NO. CR-24162-A

IN THE 217^TH JUDICIAL DISTRICT COURT

FROM ANGELINA 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 pursuant to the provisions of Tex. Code Crim. Proc. art. 11.07. Applicant was convicted of the offense of aggravated sexual assault, and punishment was assessed at confinement for 60 years. Applicant's judgment of conviction was affirmed. Foxworth v. State, No. 10-04-00209-CR (Tex. App.--Waco 2005, no pet.).

Applicant contends that his attorney rendered ineffective assistance because he failed to timely inform him of his right to prepare and file a pro se petition for discretionary review.

Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 608 (1984); Ex parte Wilson, 956 S.W.2d 25 (Tex. Crim. App. 1997); Ex parte Crow, 180 S.W.3d 135 (Tex. Crim. App. 2005). In these circumstances, additional facts are needed. Pursuant to 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 counsel T. Ryan Deaton with the opportunity to respond to applicant's claim of ineffective assistance of counsel. 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 file a petition for discretionary review because attorney T. Ryan Deaton failed to inform him of his 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. 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.

   IT IS SO ORDERED THIS THE 13^TH DAY OF SEPTEMBER, 2006.

DO NOT PUBLISH