Opinion
No. WR-33,203-02
Delivered: January 25, 2006. DO NOT PUBLISH.
On Application for Writ of Habeas Corpus, Cause Number 007-0529-02-a in the 7th, District Court Smith County.
ORDER
This is an application for a writ of habeas corpus that was transmitted to this Court by the clerk of the trial court pursuant to the provisions of Article 11.07, Section 3, of the Texas Code of Criminal Procedure. Ex Parte Young, 418 S.W.2d 824, 826 (Tex.Crim.App. 1967). Applicant was charged by indictment with evading arrest while using a vehicle. A jury found Applicant guilty and found that Applicant used or exhibited a deadly weapon, an automobile, while evading arrest. The court later assessed punishment at life imprisonment. The conviction was affirmed on direct appeal in an unpublished decision. Anderson v. State, No. 12-02-00277-CR (Tex.App.-Tyler delivered June 2, 2004, pet. ref'd). In this application for a writ of habeas corpus, Applicant argues, inter alia, that his counsel provided ineffective assistance and that he was denied due process when the State failed to timely inform him that it intended to seek a deadly weapon finding, which also acted to enhance the punishment. While the trial court has entered findings of fact and conclusions of law, it is this Court's opinion that more information is needed before this Court can render a decision on these claims. Further information must be submitted, including an affidavit from trial counsel that addresses Applicant's ineffective assistance of counsel claims and information regarding the exact nature of the claims raised on direct appeal, specifically, the grounds that were the basis of Applicant's challenge to the State's notice of intent to seek a deadly weapon finding and enhancement. Because this Court cannot hear evidence, Ex parte Rodriguez, 334 S.W.2d 294, 294 (Tex.Crim.App. 1960), the trial court is the appropriate forum. The trial court shall resolve these issues as set out in Article 11.07, Section 3(d), of the Texas Code of Criminal Procedure. In addition to ordering an affidavit from trial counsel, the trial court may order additional affidavits, depositions, interrogatories, or hold a hearing. In the appropriate case, the trial court may also rely on its personal recollection. 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 Article 26.04 of the Texas Code of Criminal Procedure, appoint an attorney to represent him at the hearing. Following the receipt of additional information, the trial court shall supplement the record to this Court with trial counsel's affidavit, a copy of the file-stamped notice provided by the State regarding its intent to seek a deadly weapon finding and enhancement, and the appellate brief that Applicant filed on direct appeal, as well as any other documents or filings that the trial court finds appropriate to aid in resolving Applicant's claims. The trial court shall also make any further findings of fact and conclusions of law that it deems relevant and appropriate to the disposition of Applicant's application for habeas corpus relief. Further, because this Court does not hear evidence, Ex parte Rodriguez, 334 S.W.2d at 294, 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. 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.
In the event any continuances are granted, copies of the order granting the continuance should be provided to this Court.
Any extensions of this time period should be obtained from this Court.