Thomas, Marcus Antray

• Court: Court of Criminal Appeals of Texas
• Decided: August 25, 2010
• Docket: WR-74,130-07
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

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NOS. WR-74,130-01 through 07

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EX PARTE MARCUS ANTRAY THOMAS, Applicant

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ON APPLICATIONS FOR A WRIT OF HABEAS CORPUS

CAUSE NOS. W06-65061-R, W06-65539-R, W06-65970-R, W06-73553-R, W06-73554-R, W06-87892-R, W0665062-R IN THE 265th DISTRICT COURT

FROM DALLAS COUNTY

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           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 a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted four times of possession of a controlled substance with intent to deliver, once of possession of a controlled substance, and twice of delivery of a controlled substance and sentenced to ten years’ imprisonment in each cause.

            Applicant contends that his counsel rendered ineffective assistance because counsel failed to timely file notices of appeal. Specifically, the Applicant alleges that counsel advised the trial court that he intended to appeal Applicant’s convictions, but then he abandoned any appeals without advising the Applicant.

            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). In these circumstances, additional facts are needed. As we held in Ex parte Rodriguez, 334 S.W.2d 294, 294 (Tex. Crim. App. 1960), the trial court is the appropriate forum for findings of fact. The trial court shall provide 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 was denied his right to meaningful appeals because Applicant’s counsel failed to timely file notices of appeal. 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 25, 2010

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