Sanchez, Daniel ( 2006 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NOS. WR-61-296-05, 06, 07, 08

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EX PARTE DANIEL SANCHEZ, Applicant

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ON APPLICATIONS FOR A WRIT OF HABEAS CORPUS

CAUSE NOS. 03-03-0086, 0088, 0089-CRA IN THE 218^th JUDICIAL DISTRICT COURT FROM ATASCOSA COUNTY

CAUSE NO. 03-05-0153-CRA IN THE 81^st JUDICIAL DISTRICT COURT

FROM ATASCOSA COUNTY

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Per Curiam.

O R D E R  

These are applications for writs of habeas corpus which were transmitted to this Court pursuant to the provisions of Tex. Code Crim. Proc. art. 11.07. Applicant was convicted of the offenses of two aggravated assaults with a deadly weapon on a public servant, possession of a controlled substance with intent to deliver, and evading arrest. The punishment was assessed at sixty years, sixty years, sixty years, and fifteen years confinement, respectively. Applicant's convictions were affirmed on appeal. Sanchez v. State Nos. 04-04-00602, 603, 604, 605 - CR (Tex. App. --San Antonio, delivered October 27, 2004, no pet.).

Applicant contends that he was deprived of his meaningful right to appeal his convictions due to the ineffective assistance of his counsel. Specifically, the Applicant contends that he asked counsel to appeal his convictions, and counsel then failed to timely file notices of appeal.

The trial court has entered findings of fact and conclusions of law finding counsel ineffective, and recommending that relief be granted. However, counsel has not been given an opportunity to respond to the allegations made by Applicant. We believe that Applicant has alleged facts that, if true, might entitle him to relief. Therefore, it is this Court's opinion that additional facts need to be developed and because this Court cannot hear evidence, the trial court is the appropriate forum. The trial court shall resolve those issues as set out in Tex. Code Crim. Proc. art. 11.07, § 3 (d), in that it shall order an affidavit from counsel, or it may order a hearing.

If the trial court elects to hold a hearing, the court shall first decide whether Applicant is indigent. If the trial court finds that Applicant is indigent and Applicant desires to be represented by counsel, the trial court will then, pursuant to the provisions of Tex. Code Crim. Proc. art. 26.04, appoint an attorney to represent him at the hearing.

Following receipt of additional information, the trial court shall make findings of fact as to whether the Applicant has been deprived of his right to appeal his convictions due to the ineffective assistance of his counsel. The trial court shall also make findings of fact regarding the validity of the supporting documentation provided by the Applicant entitled "Appellant's Response To The Court's Order To Show Cause Why His Appeal Should Not Be Dismissed", which is located on pp. 98-100, in the habeas record. The trial court should also make any further findings of fact and conclusions of law it deems relevant and appropriate to the disposition of the application for writ of habeas corpus.

Because this Court does not hear evidence, Ex Parte Rodriquez, 334 S.W.2d 294 (Tex. Crim. App. 1960), this application for a post-conviction writ of habeas corpus will be held in abeyance pending the trial court's compliance with this order. Resolution of the issues shall be accomplished by the trial court within 90 days of the date of this order. ⁽¹⁾ 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. ⁽²⁾

IT IS SO ORDERED THIS THE 13th DAY OF September , 2006.

EN BANC

DO NOT PUBLISH   

1.

In the event any continuances are granted, copies of the order granting the continuance should be provided to this Court.

2.

Any extensions of this time period should be obtained from this Court.