Gipson, Danny

• Court: Court of Criminal Appeals of Texas
• Decided: December 18, 2019
• Docket: WR-90,679-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-90,679-01

EX PARTE DANNY GIPSON, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 10F0430-005-A IN THE 5TH DISTRICT COURT FROM BOWIE COUNTY

Per curiam.

ORDER

Applicant was convicted of indecency with a child by exposure and sentenced to 10 years’

imprisonment. Applicant filed this application for a writ of habeas corpus in the county of

conviction, and the district clerk forwarded it to this Court. See TEX . CODE CRIM . PROC. art. 11.07.

Applicant contends that appellate counsel has not contacted Applicant and has taken no

action to perfect the appeal. The deadline for filing a direct appeal has passed. Thus, it appears that

counsel failed to timely file a notice of appeal. Ex parte Axel, 757 S.W.2d 369 (Tex. Crim. App.

1988); Jones v. State, 98 S.W.3d 700 (Tex. Crim. App. 2003).

Additionally, Applicant alleges that he received ineffective assistance of trial counsel when

counsel incorrectly advised him that this was a 3g offense and that he would have to serve half of 2

his sentence if he did not plead guilty. Further, trial counsel failed to subpoena witnesses and

evidence that would have proven the photo lineup was obtained illegally. Applicant asserts that he

would not have pleaded guilty, but for trial counsel’s deficient performance.

Applicant has alleged facts that, if true, might entitle him to relief. Smith v. Robbins, 528

U.S. 259 (2000); Ex parte Miller, 330 S.W.3d 610 (Tex. Crim. App. 2009). Accordingly, the record

should be developed. The trial court is the appropriate forum for findings of fact. TEX . CODE CRIM .

PROC. art. 11.07, § 3(d). The trial court shall order appellate and trial counsel to respond to

Applicant’s claims of ineffective assistance of counsel. In developing the record, the trial court may

use any means set out in Article 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 wants to be represented by

counsel, the trial court shall appoint counsel to represent him at the hearing. See TEX . CODE CRIM .

PROC. art. 26.04. If counsel is appointed or retained, the trial court shall immediately notify this

Court of counsel’s name.

The trial court shall make findings of fact and conclusions of law as to whether appellate

counsel’s performance was deficient and Applicant was prejudiced. The court shall also make

findings and conclusions as to whether trial counsel’s performance was deficient and Applicant was

prejudiced. The trial court may make any other findings and conclusions that it deems appropriate

in response to Applicant’s claim.

The trial court shall make findings of fact and conclusions of law within ninety days from

the date of this order. The district clerk shall then immediately forward to this Court the trial court’s

findings and conclusions and the record developed on remand, including, among other things,

affidavits, motions, objections, proposed findings and conclusions, orders, and transcripts from 3

hearings and depositions. See TEX . R. APP. P. 73.4(b)(4). Any extensions of time must be requested

by the trial court and obtained from this Court.

Filed: December 18, 2019 Do not publish