McKenzie, Seneca Llwelyn

• Court: Court of Criminal Appeals of Texas
• Decided: May 10, 2006
• Docket: WR-64,503-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-64,503-01 EX PARTE SENECA LLWELYN MCKENZIE, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

TRIAL COURT CAUSE NO. 26641-A

IN THE 3^RD JUDICIAL DISTRICT COURT

FROM ANDERSON COUNTY

Per curiam.

O R D E R

This is an application for a writ of habeas corpus which was transmitted to this Court pursuant to the provisions of Tex. Code Crim. Proc. art. 11.07. Applicant was convicted of the offense of delivery of a controlled substance, and punishment was assessed at confinement for eighteen years. No direct appeal was taken.

Applicant contends that he was denied his right to appeal when the district clerk improperly changed the file stamp date on his notice of appeal to reflect an untimely filing.

Applicant has alleged facts that, if true, might entitle him/her to relief. U.S. v. Cronic, 466 U.S. 648 (1984); Evitts v. Lucey, 469 U.S. 387 (1985); Griffin v. Illinois, 351 U.S. 12 (1955). In these circumstances, additional facts are needed. Pursuant to Ex parte Rodriguez, 334 S.W.2d 294, 294 (Tex. Crim. App. 1997), the trial court is the appropriate forum for findings of fact. The trial court may use any means set out in Tex. Code Crim. Proc., art. 11.07, § 3(d). In the appropriate case, the trial court may rely on its personal recollection. Id.

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 as to whether applicant was denied his right to a meaningful 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. If any continuances are granted, a copy of the order granting the continuance shall be sent to this Court. 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 120 days of the date of this order. Any extensions of time shall be obtained from this Court.

IT IS SO ORDERED THIS THE 10^TH DAY OF MAY, 2006.

DO NOT PUBLISH