Cardenas, Jose Antonio ( 2011 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. WR-76,447-01

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EX PARTE JOSE ANTONIO CARDENAS, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 2004CRN160-D1(A) IN THE 49^TH JUDICIAL DISTRICT COURT FROM WEBB 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 murder and sentenced to seventy-five years' imprisonment. The Fourth Court of Appeals dismissed his appeal pursuant to Applicant's motion to dismiss the appeal. Cardenas v. State, No. 04-09-00492-CR (Tex. App. - San Antonio, March 31, 2010).

Applicant contends, inter alia, that his appellate counsel rendered ineffective assistance because appellate counsel induced Applicant to dismiss his appeal and forfeit his right to appellate review by telling him that he would prepare and file a habeas application on Applicant's behalf.

Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 668 (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 an affidavit from Applicant's appellate counsel responding to Applicant's claim of ineffective assistance of counsel. Specifically, appellate counsel shall state why he advised Applicant to dismiss his appeal, why he did not file a brief, and whether he advised Applicant that he would prepare and file a habeas application on his behalf. If appellate counsel did tell Applicant that he would file a habeas application on his behalf, he shall state why he did not do so. 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 knowingly and voluntarily signed the motion to dismiss his appeal. The trial court shall make findings as to whether Applicant did so with the understanding that appellate counsel would prepare and file a habeas application on his behalf. The trial court shall make findings as to whether appellate counsel's advice caused Applicant to be deprived of his right to appellate review of his conviction. The trial court shall also make findings as to whether the performance of appellate counsel was deficient and, if so, whether counsel's deficient performance prejudiced Applicant. 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: October 5, 2011

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