MacAuley, Moses George

• Court: Court of Criminal Appeals of Texas
• Decided: April 22, 2015
• Docket: WR-83,024-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-83,024-01

EX PARTE MOSES GEORGE MACAULEY, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 1265339-A IN THE 208TH DISTRICT COURT FROM HARRIS 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 aggravated

robbery with a deadly weapon and sentenced to twenty-five years’ imprisonment. He did not appeal

his conviction.

Applicant contends that his counsel rendered ineffective assistance because counsel failed

to timely file a notice of appeal. The judgment in the instant case states that Applicant waived his

right to appeal and that no permission to appeal was granted by the trial court. However, the trial 2

court has made a specific finding that Applicant had the right to appeal the conviction.

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).

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

waived his right to appeal. The trial court shall make findings of fact and conclusions of law as to

whether Applicant timely informed counsel that he wanted an appeal, and if so, what actions counsel

took to facilitate that appeal. 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 shall 3

be obtained from this Court.

Filed: April 22, 2015 Do not publish