Phillips, Boyce Dee

• Court: Court of Criminal Appeals of Texas
• Decided: August 22, 2007
• Docket: WR-67,869-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-67,869-01 EX PARTE BOYCE DEE PHILLIPS, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. CR00032-HC-1 IN THE 102ND 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 was convicted of aggravated sexual assault and sentenced to life imprisonment. The Sixth Court of Appeals affirmed his conviction. Phillips v. State, No. 06-06-018-CR (Tex. App. - Texarkana, delivered December 14, 2006, no pet.).

Applicant contends, inter alia, that his appellate counsel rendered ineffective assistance because counsel failed to timely notify Applicant that his conviction had been affirmed. Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 608 (1984); Ex parte Lemke, 13 S.W.3d 791,795-96 (Tex. Crim. App. 2000). The trial court has found that Applicant had filed an appeal with the Court of Criminal Appeals, but he only filed a motion for extension of time, which was denied. In these circumstances, 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 making findings of fact. The trial court shall provide appellate counsel with the 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.

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's appellate counsel timely informed Applicant that his conviction had been affirmed or that he could file a pro se petition for discretionary review. 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.

Filed: August 22, 2007

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