Per curiam.
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 three counts of aggravated sexual assault and two counts of indecency with a child, He was sentenced to 65 years' imprisonment on the aggravated sexual assault counts and ten years' imprisonment on the indecency counts. The Thirteenth Court of Appeals affirmed his conviction. Castillo v. State, No. 13-09-127-CR (Tex. App.-Corpus Christi March 4, 2011).
Applicant contends that his appellate counsel rendered ineffective assistance because counsel failed to timely notify Applicant that his conviction had been affirmed. He alleges that counsel claims he timely informed Applicant, but that the Texas Department of Criminal Justice (TDCJ) mail room records for his unit shows that he did not receive any such notification from counsel.
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. 1960), the trial court is the appropriate forum for findings of fact. The trial court shall obtain a response from appellate counsel regarding Applicant's claim of ineffective assistance of counsel on appeal. The trial court shall also obtain mail room records from the Texas Department of Criminal Justice from the unit where Applicant was housed in March and April 2011 to determine whether Applicant received any legal mail from appellate counsel during that time frame. The trial court may use any means set out in Tex. Code Crim. Proc. art. 11.07, § 3(d).
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's appellate counsel timely informed Applicant that his conviction had been affirmed and that he had a right to file a pro se petition for discretionary review. If the trial court finds that counsel timely informed Applicant that his conviction had been affirmed, it shall make findings as to whether Applicant received such notice. 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: February 15, 2012
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