Hines, Alvin Eugene

• Court: Court of Criminal Appeals of Texas
• Decided: January 28, 2015
• Docket: WR-80,819-02
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-80,819-02

EX PARTE ALVIN EUGENE HINES, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 31047-A 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 murder and

sentenced to sixty years’ imprisonment. His appeal was dismissed for want of jurisdiction. Hines v.

State, No. 12-13-00325-CR (Tex. App.—Tyler Nov. 21, 2013) (not designated for publication).

Applicant contends that his counsel rendered ineffective assistance because counsel failed

to timely file a notice of appeal. After a remand, the trial court obtained a response from one of

Applicant’s two trial lawyers, and recommends granting relief, despite finding that Applicant was

denied a meaningful appeal due to his own actions. The writ record contains no response from the 2

lawyer Applicant allegedly said he would be contacting about his appellate rights.

Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington,

466 U.S. 668 (1984); 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 shall order counsel to respond to

Applicant’s claim of ineffective assistance of counsel. The trial court may use any means set out in

TEX . CODE CRIM . PROC. art. 11.07, § 3(d).

It appears that Applicant is represented by counsel. If he is not represented and 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 additional findings of fact and conclusions of law as to whether

Applicant was denied his right to a meaningful appeal because Applicant’s counsel failed to timely

file a notice of appeal. The trial court shall make specific findings addressing whether Applicant

contacted his second trial lawyer about the appeal, and how that lawyer advised Applicant as to his

appellate rights. The trial court shall also make any other additional 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 3

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: January 28, 2015 Do not publish