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Ex Parte Lewis

Court of Criminal Appeals of Texas
Aug 20, 2008
No. WR-70,103-01 (Tex. Crim. App. Aug. 20, 2008)

Opinion

No. WR-70,103-01

Filed: August 20, 2008. DO NOT PUBLISH

On Application for Writs of Habeas Corpus, Cause No. 28832CR, In 40th District Court from Ellis 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 manslaughter and sentenced to fifteen years' imprisonment. The Court of Appeals affirmed his conviction. Lewis v. State, No. 10-05-267-CR (Tex.App.-Waco, delivered September 13, 2006). Applicant contends that appellate counsel rendered ineffective assistance because counsel failed to advise of right to petition for discretionary review pro se. Applicant has alleged facts that, if true, might entitle 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 appellate counsel with the opportunity to respond to Applicant's claim of ineffective assistance of counsel 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 Applicant's appellate counsel timely informed Applicant that 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.


Summaries of

Ex Parte Lewis

Court of Criminal Appeals of Texas
Aug 20, 2008
No. WR-70,103-01 (Tex. Crim. App. Aug. 20, 2008)
Case details for

Ex Parte Lewis

Case Details

Full title:EX PARTE TIMOTHY LAMONT LEWIS, Applicant

Court:Court of Criminal Appeals of Texas

Date published: Aug 20, 2008

Citations

No. WR-70,103-01 (Tex. Crim. App. Aug. 20, 2008)