Opinion
No. WR-72,049-01
Filed: June 10, 2009. DO NOT PUBLISH.
On Application for a Writ of Habeas Corpus Cause No. 20020D04275-384-1 in the 384th Judicial District Court from El Paso County.
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 writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex.Crim.App. 1967). Applicant was convicted of aggravated robbery and sentenced to fifty years' imprisonment. The Eighth Court of Appeals affirmed his conviction. Corral v. State, No. 08-03-00102-CR (Tex.App.-El Paso, October 7, 2004). Applicant contends, inter alia, that the attorney who represented him both at trial and on direct appeal rendered ineffective assistance of counsel. Applicant alleges that counsel failed to preserve error at trial by objecting to in-court identifications that were the result of improperly suggestive pre-trial identification procedures. Applicant also alleges that counsel rendered ineffective assistance on appeal because counsel failed to timely notify Applicant that his conviction had been affirmed and failed to advise him of his right to petition for discretionary review pro se. 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. 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 provide trial and appellate counsel with the opportunity to respond to Applicant's claims of ineffective assistance of counsel at trial and 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 counsel investigated the issue of the alleged improperly suggestive pre-trial identification proceedings, and if so, why counsel failed to make contemporaneous objections to the identification of Applicant by the complainants at trial. The trial court shall also make findings as to whether Applicant's appellate counsel timely informed Applicant that his conviction had been affirmed and that he has 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. 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.