Richardson, Johnny

• Court: Court of Criminal Appeals of Texas
• Decided: April 6, 2022
• Docket: WR-92,586-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-92,586-01

EX PARTE JOHNNY RICHARDSON, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 1624475-A IN THE 179TH DISTRICT COURT FROM HARRIS COUNTY

Per curiam.

ORDER

Applicant was convicted of aggravated robbery with a deadly weapon and sentenced to forty

years’ imprisonment. Applicant filed this application for a writ of habeas corpus in the county of

conviction, and the district clerk forwarded it to this Court. See TEX . CODE CRIM . PROC. art. 11.07.

On May 26, 2021, this Court remanded this matter to the trial court to obtain an affidavit

from trial counsel and to make findings of fact addressing Applicant’s claims. The trial court has

made findings and recommends that this Court deny relief. However, the trial court’s findings do

not adequately address Applicant’s allegation that counsel failed to advise him of his right to appeal

and failed to file a notice of appeal, despite being put on notice that Applicant desired to appeal.

Applicant has alleged facts that, if true, might entitle him to relief. See Garza v. Idaho, 139 2

S. Ct. 738, 748, 749–50 (2019); Jones v. State, 98 S.W.3d 700, 703-04 (Tex. Crim. App. 2003). In

these circumstances, additional findings are needed. The trial court is the appropriate forum for

findings of fact. TEX . CODE CRIM . PROC. art. 11.07, § 3(d). The trial court shall order trial counsel

to file a supplemental affidavit responding to Applicant’s claim. In developing the record, the trial

court may use any means set out in Article 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 wants to be represented

by counsel, the trial court shall appoint counsel to represent at the hearing. See TEX . CODE CRIM .

PROC. art. 26.04. If counsel is appointed or retained, the trial court shall immediately notify this

Court of counsel’s name.

The trial court shall make supplemental findings of fact and conclusions of law as to whether

Applicant was denied his right to an appeal, regardless of the fact he pleaded guilty, because trial

counsel failed to timely file a notice appeal. The trial court shall make specific findings addressing

whether trial counsel ascertained if Applicant wished to appeal. The trial court may make any other

findings and conclusions that it deems appropriate in response to Applicant’s claim.

The trial court shall make supplemental findings of fact and conclusions of law within ninety

days from the date of this order. The district clerk shall then immediately forward to this Court the

trial court’s findings and conclusions and the record developed on remand, including, among other

things, counsel’s supplemental affidavit, motions, objections, proposed findings and conclusions,

orders, and transcripts from hearings and depositions. See TEX . R. APP . P. 73.4(b)(4). Any

extensions of time must be requested by the trial court and obtained from this Court.

Filed: April 6th, 2022

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