Barrett, Kevin Ryan

• Court: Court of Criminal Appeals of Texas
• Decided: May 9, 2012
• Docket: WR-77,380-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-77,380-01 EX PARTE KEVIN RYAN BARRETT, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. A-34,537 IN THE 70^TH DISTRICT COURT

FROM ECTOR COUNTY

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 aggravated sexual assault and sentenced to fifteen years' imprisonment.

Applicant contends that his counsel rendered ineffective assistance because counsel failed to timely file a notice of appeal. Applicant alleges counsel was retained to represent him at a motion for new trial hearing "and also to file any appeals should the new trial be denied." The habeas record contains both sworn statements from family members supporting his allegations and a letter from counsel stating that he was only paid to litigate a motion for new trial.

Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 668 (1984); Ex parte Axel, 757 S.W.2d 369, 375 (Tex. Crim. App. 1988). 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 counsel addressing 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 was denied his right to a meaningful appeal because Applicant's counsel failed to timely file a notice of appeal. The trial court shall make specific findings as to whether counsel told Applicant that he would appeal the motion for new trial. If the trial court finds that counsel did not advise Applicant that he would perfect appeal on Applicant's behalf, the trial court shall make specific findings determining whether he advised Applicant of his appellate rights and, if applicable, the necessary actions to preserve them. 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: May 9, 2012

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