Gillon, Charles E.

• Court: Court of Criminal Appeals of Texas
• Decided: May 10, 2006
• Docket: WR-64,576-02
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-64,576-01, WR-64,576-02 EX PARTE CHARLES E. GILLON, Applicant

ON APPLICATIONS FOR WRITS OF HABEAS CORPUS

FROM CAUSE NOS. F-2003-0268 AND F-2002-1367 IN THE 367^TH JUDICIAL DISTRICT COURT OF DENTON COUNTY

Per curiam.

O R D E R

These are applications for writs of habeas corpus which were transmitted to this Court pursuant to the provisions of Tex. Code Crim. Proc. art. 11.07. Applicant was convicted of two charges of possession of a controlled substance, and punishment was assessed at twenty years' confinement. No direct appeal was taken.

Applicant contends that he was denied the right to appeal his convictions, because trial counsel failed to advise him of his appellate rights, and because the trial court failed to appoint appellate counsel.

The trial court has not entered findings of fact or conclusions of law. We believe that Applicant has alleged facts that, if true, might entitle him to relief. Therefore, it is this Court's opinion that additional facts need to be developed and because this Court cannot hear evidence, the trial court is the appropriate forum. The trial court may 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, the court 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.

Following receipt of additional information, the trial court shall make findings of fact as to whether Applicant ever expressed his desire to appeal these convictions. If so, the trial court shall make findings as to whether appellate counsel was appointed, and if not, why not. If Applicant did not express a desire to appeal his convictions, the trial court shall make findings as to whether trial counsel informed Applicant of his right to appeal. The court shall also make findings as to whether a motion for a new trial or notice of appeal was ever filed on Applicant's behalf in these cases. 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 applications for writs of habeas corpus.

Because this Court does not hear evidence, Ex Parte Rodriquez, 334 S.W.2d 294 (Tex. Crim. App. 1960), these applications for post-conviction writs of habeas corpus will be held in abeyance pending the trial court's compliance with this order. Resolution of the issues shall be accomplished by the trial court within ninety days of the date of this order. ⁽¹⁾ 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 one hundred and twenty days of the date of this order. ⁽²⁾

IT IS SO ORDERED THIS THE 10th DAY OF MAY, 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.