Bailey, David Alexander

• Court: Court of Criminal Appeals of Texas
• Decided: January 26, 2011
• Docket: WR-50,967-06
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

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NO. WR-50,967-06

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EX PARTE DAVID ALEXANDER BAILEY, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 7877 IN THE 27^TH DISTRICT COURT

FROM LAMPASAS 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 this application for writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of possession with intent to deliver a controlled substance and sentenced to thirty-five years’ imprisonment. The Third Court of Appeals affirmed his conviction. Bailey v. State, No. 03-07-00417-CR (Tex. App.–Austin, October 27, 2009).

           Applicant contends that his appellate counsel rendered ineffective assistance because counsel failed to file a motion to extend time to file a petition for discretionary review. He alleges that he received a letter from counsel stating that counsel would file such a motion and because counsel failed to do so, he was unable to file his pro se petition for discretionary review with this Court.

           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 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 filed a motion for extension of time for Applicant to file his pro se petition for discretionary review. The trial court shall make findings of fact as to whether Applicant relied on counsel’s representation that he would file a motion of extension of time and therefore missed his deadline to file his pro se petition. 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: January 26, 2011

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