Newport, Edward Peter

• Court: Court of Criminal Appeals of Texas
• Decided: June 27, 2007
• Docket: WR-66,526-03
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NOS. WR-66,526-02; 66,526-03; AND 66,526-04 EX PARTE EDWARD PETER NEWPORT, Applicant

ON APPLICATIONS FOR WRITS OF HABEAS CORPUS

CAUSE NOS. W00-29450-T; W00-29454-T; AND W00-29440-T

IN THE 283RD DISTRICT COURT FROM DALLAS COUNTY

Per curiam.

O R D E R

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 these applications for writs of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of sexual assault and aggravated sexual assault and sentenced to 20 years' and 99 years' imprisonment. The convictions were affirmed on direct appeal after appellate counsel did not file appellate briefs. Newport v. State, Nos. 05-01-01183-CR, 05-01-01184-CR, 05-01-01185-CR (Tex. App. - Dallas, September 24, 2002, no pet.)

Applicant contends that his appellate counsel rendered ineffective assistance because counsel failed to file appellate briefs.

The trial court has entered findings that appellate counsel was ineffective and that Applicant is entitled to an out-of-time appeal. Strickland v. Washington, 466 U.S. 608 (1984); Ex parte Lemke, 13 S.W.3d 791,795-96 (Tex. Crim. App. 2000). However, additional facts are needed. As we held in 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 shall provide appellate counsel with an opportunity 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). In the appropriate case, the trial court may rely on its personal recollection. Id.

It appears that Applicant is represented by counsel. If the trial court elects to hold a hearing, it shall determine whether Applicant is still represented by counsel and, if not, whether he 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 forward documentation of the direct appeal that the court relied upon in finding that Applicant was denied his right to a meaningful appeal due to the ineffective assistance of appellate counsel. The trial court shall also forward documentation reflecting that appellate counsel has had an opportunity to respond to the claim in the context of habeas corpus review. The trial court may make any supplemental 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 documentation of the appellate proceeding, all affidavits and interrogatories or the transcription of the court reporter's notes from any hearing or deposition, along with any 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.

Filed: June 27, 2007

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