Borens, Lafarris

• Court: Court of Criminal Appeals of Texas
• Decided: March 20, 2013
• Docket: WR-66,244-02
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-66,244-02 EX PARTE LAFARRIS BORENS, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. F-05-60566-R IN THE 265^TH DISTRICT COURT

FROM DALLAS 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 a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of aggravated robbery and sentenced to twenty five years' imprisonment. The Fifth Court of Appeals affirmed his conviction. Borens v. State, No. 05-07-01516-CR (Tex. App.--Dallas Apr. 15, 2009) (unpublished).

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); Ex parte Riley, 193 S.W.3d 900 (Tex. Crim. App. 2006). 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 has obtained an affidavit from counsel. The trial court shall obtain the mail logs from the relevant prison units from the time counsel sent a letter notifying Applicant of the disposition of his direct appeal through the last day Applicant could have filed a pro-se petition for discretionary review. 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 timely received appellate counsel's notification that the conviction had been affirmed. 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. 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: March 20, 2013

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