O'Neal, Antonio Markeith

• Court: Court of Criminal Appeals of Texas
• Decided: February 29, 2012
• Docket: WR-76,219-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-76,219-01 EX PARTE ANTONIO MARKEITH O'NEAL, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 59CR1100 IN THE 6^TH JUDICIAL DISTRICT COURT

FROM RED RIVER 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 this application for writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant entered an open plea of no contest to aggravated robbery, and was sentenced to ninety-nine years' imprisonment. His direct appeal was dismissed for want of jurisdiction.

Applicant contended, inter alia, that he was denied his right to appeal because appellate counsel failed to timely file notice of appeal. On September 14, 2011, this Court remanded to the trial court to obtain affidavits and findings of fact addressing Applicant's ineffective assistance of trial and appellate counsel claims. On remand, the trial court obtained an affidavit from Applicant's trial counsel, and made findings of fact addressing the ineffective assistance of trial counsel claims. However, the trial court did not obtain an affidavit or make findings addressing Applicant's claim that he was denied the opportunity to appeal because appellate counsel did not timely file notice of appeal.

The trial court shall obtain an affidavit from Applicant's appellate counsel responding to Applicant's claims of ineffective assistance of counsel and denial of 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.

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 why notice of appeal was not timely filed in this case. The trial court shall also make findings as to why appellate counsel did not file a proper motion for an extension of time to file notice of appeal. The trial court shall make findings as to whether the performance of Applicant's appellate attorney was deficient and, if so, whether counsel's deficient performance prejudiced Applicant. 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 transcript 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.

Filed: February 29, 2012

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