Spicer, Michael David

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-71,937-01 EX PARTE MICHAEL DAVID SPICER, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 32649CR/A IN THE 40TH DISTRICT COURT

FROM ELLIS 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 two counts of aggravated sexual assault of a child and sentenced to thirty (30) years' confinement on each count.

Applicant contends that counsel rendered ineffective assistance because counsel failed to timely file a notice of appeal.

The habeas record has been forwarded to this Court prematurely. On April 9, 2009, the trial judge entered an Order Designating Issues requiring trial counsel and appellate counsel to file affidavits in response to Applicant's ineffective assistance of counsel allegations. Strickland v. Washington, 466 U.S. 608 (1984). We return this application to Ellis County to allow the trial judge to complete the fact gathering he deemed necessary and enter findings of fact and conclusions of law.

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: May 20, 2009

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