Dominey, Marvin A/K/A Dominey, Vernon Marvin

• Court: Court of Criminal Appeals of Texas
• Decided: March 29, 2006
• Docket: WR-64,232-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-64,232-01

EX PARTE MARVIN DOMINEY,

A.K.A. VERNON MARVIN DOMINEY, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 22,353 IN THE 217^TH/ 159^TH JUDICIAL DISTRICT COURT

ANGELINA COUNTY

Per curiam. Keller, P.J., dissented.

O R D E R

This is an application for a writ of habeas corpus which was transmitted to this Court by the clerk of the trial court pursuant to the provisions of Tex. Code Crim. Proc. art. 11.07. Applicant was convicted of the offense of aggravated sexual assault of a child, and punishment was assessed at thirty (30) years' confinement. No direct appeal was taken.

Applicant contends that he was denied the right to appeal when trial counsel failed to file an appeal or advise Applicant of his right to appeal.

The trial court has entered findings of fact or conclusions of law finding that Applicant waived the right to appeal and that counsel was effective. However, we do not believe that those factual findings are sufficient to completely resolve the issues presented. Because Applicant has stated facts requiring resolution and because this Court cannot hear evidence, it is necessary for the matter to be remanded to the trial court for resolution of those issues. The trial court shall resolve those issues as set out in Tex. Code Crim. Proc. art. 11.07, § 3 (d), in that it may order affidavits, depositions, or interrogatories from counsel or it may order a hearing. In the appropriate case the trial court may rely on its personal recollection.

If the trial court elects to hold a hearing, it shall first decide whether Applicant is indigent. If the trial court finds that Applicant is indigent and Applicant desires to be represented by counsel, the trial court will then, pursuant to the provisions of Tex. Code Crim. Proc. art. 26.04, appoint an attorney to represent him at the hearing.

The trial court shall then make findings of fact as to whether a plea bargain existed, and whether Applicant's waiver of the right to appeal was part of the plea agreement. If the court finds that there was no plea bargain, the trial court shall make findings of fact as to whether Applicant was advised of the right to appeal, whether Applicant informed counsel that he wished to appeal, and whether counsel advised Applicant of the steps to perfect an appeal. The trial court shall also make any further findings of fact and conclusions of law it deems relevant and appropriate to the disposition of the application for writ of habeas corpus.

The trial court shall supplement the habeas record with copies of all documents upon which its findings are based, including copies of the indictment, judgment, plea bargain papers, waivers, admonishments, excerpts of the trial transcript, affidavits from counsel, and any other relevant documents.

Because this Court does not hear evidence, Ex Parte Rodriguez, 334 S.W.2d 294 (Tex. Crim. App. 1960), this application for a post-conviction writ of habeas corpus will be held in abeyance pending the trial court's compliance with this order. The trial court shall resolve the issues presented within ninety (90) days of the date of this order. ⁽¹⁾ A supplemental transcript containing any affidavits, the transcription of the court reporter's notes from any interrogatories or hearings held, along with the trial court's findings of fact and conclusions of law, shall be returned to this Court within one hundred twenty (120) days of the date of this order. ⁽²⁾

IT IS SO ORDERED THIS THE 29^TH DAY OF MARCH, 2006.

EN BANC

DO NOT PUBLISH

1. In the event any continuances are granted, copies of the order granting the continuance shall be provided to this Court.

2. Any extensions of this time period shall be obtained from this Court.