Harper, Jeffrey Wayne

• Court: Court of Criminal Appeals of Texas
• Decided: June 20, 2018
• Docket: WR-46,001-02
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-46,001-02

EX PARTE JEFFREY WAYNE HARPER, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. F14743-A IN THE 276th DISTRICT COURT FROM MARION 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 possession of a

prohibited substance in a correctional facility and sentenced to seventy-five years’ imprisonment.

The Sixth Court of Appeals affirmed his conviction. Harper v. State, No. 06-17-00036-CR (Tex.

App.—Texarkana Sept. 18, 2017) (not designated for publication).

Applicant contends that his appellate counsel rendered ineffective assistance because counsel

failed to timely notify Applicant that his conviction had been affirmed. The trial court recommends

relief be granted. However, the record reflects that no affidavit from counsel has been obtained 2

addressing Applicant’s claim for relief. Therefore, we do not believe the trial court’s

recommendation to grant relief is sufficiently supported by the record.

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). 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

shall order appellate counsel to respond to Applicant’s claim of ineffective assistance of counsel on

appeal. 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’s

appellate counsel timely informed Applicant that his 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 must

be requested by the trial court and shall be obtained from this Court. 3

Filed: June 20, 2018 Do not publish