Trevino, Antonio Jr.

• Court: Court of Criminal Appeals of Texas
• Decided: August 25, 2010
• Docket: WR-74,372-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

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NO. WR-74,372-01

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EX PARTE ANTONIO TREVINO, JR., Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 10-CRD-48 IN THE 229TH DISTRICT COURT

FROM DUVAL 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 this application for writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). After pleading guilty, applicant was convicted of aggravated assault and sentenced to twenty years’ imprisonment. He did not appeal his conviction.

            Applicant contends that his trial counsel rendered ineffective assistance because did not inform applicant of his right to appeal and did not perfect appeal.

            Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 608 (1984); Ex parte Axel, 757 S.W.2d 369 (Tex. Crim. App. 1988). 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 Applicant’s trial counsel with the opportunity to respond to Applicant’s claim of ineffective assistance of counsel. 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 had a right to appeal this conviction. If applicant had a right to appeal, the trial court shall make additional findings as to whether the performance of Applicant’s trial attorney was deficient with respect to advising applicant of his appellate rights and perfecting appeal 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 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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