Arroyos, Erminio Jr.

• Court: Court of Criminal Appeals of Texas
• Decided: May 22, 2013
• Docket: WR-79,487-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

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NOS. WR-79,487-01 AND WR-79,487-02

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EX PARTE ERMINIO ARROYOS, JR., Applicant

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ON APPLICATIONS FOR WRITS OF HABEAS CORPUS

CAUSE NOS. CR11627 AND CR11713 IN THE 355TH DISTRICT COURT

FROM HOOD COUNTY

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            Per curiam.

O R D E R

            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 these applications for writs of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of one charge of possession of a firearm by a felon and one charge of possession of a controlled substance, and sentenced to ninety-nine years’ imprisonment. The Second Court of Appeals affirmed his convictions. Arroyos v. State, Nos. 02-11-00135-CR and 02-11-00136-CR (Tex. App. – Fort Worth, May 3, 2012).

            Applicant contends that his appellate counsel rendered ineffective assistance because counsel failed to timely notify Applicant that his conviction had been affirmed and failed to advise him of his right to petition pro se for discretionary review.

            Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 668 (1984); Ex parte Wilson, 956 S.W.2d 25 (Tex. Crim. App. 1997). 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 order appellate counsel to respond to Applicant’s claim of ineffective assistance of counsel on appeal. Specifically, appellate counsel shall state the earliest date upon which he advised Applicant of the court of appeals’ decision, provided a copy of the appellate opinion to Applicant, and advised Applicant of his right to pursue discretionary review pro se. Appellate counsel shall also provide any documentation showing when he so advised Applicant. If appellate counsel does not have such documentation, the trial court shall obtain an affidavit from the unit mail room in which Applicant was held during the applicable period, stating whether Applicant received any legal mail from appellate counsel between May 3, 2012, and June 3, 2012. 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 and conclusions of law 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.

            These applications 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. 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 forwarded to this Court within 120 days of the date of this order. Any extensions of time shall be obtained from this Court.

Filed: May 22, 2013

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