Deckard, Benjamin Wayne

• Court: Court of Criminal Appeals of Texas
• Decided: June 8, 2016
• Docket: WR-84,727-02
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-84,727-02

EX PARTE BENJAMIN WAYNE DECKARD, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 31819-B IN THE 3RD DISTRICT COURT FROM ANDERSON COUNTY

Per curiam.

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 a writ of habeas corpus. Ex parte

Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of three counts of

possession with the intent to deliver a controlled substance and one count of possession of

marihuana. He was sentenced to imprisonment for two terms of sixty years, one term of fifty years,

and one term of two years. The Twelfth Court of Appeals dismissed his appeal. Deckard v. State,

No. 12-15-00264-CR (Tex. App.—Tyler Dec. 16, 2015) (not designated for publication).

In a single ground, Applicant contends that he was denied his right to appeal because the trial

court failed to timely execute the certification of his right to appeal. 2

Applicant has alleged facts that, if true, might entitle him to relief. Ex parte Patterson, 993

S.W.2d 114, 115 (Tex. Crim. App. 1999); Ex parte Axel, 757 S.W.2d 369 (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 may use any means set out in TEX . CODE CRIM . PROC. art. 11.07, § 3(d).

Applicant appears to be represented by counsel. 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 him 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

was denied his right to appeal because the trial court failed to timely execute the certification of

Applicant’s right to appeal. 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: June 8, 2016 Do not publish