Warterfield, Robert Tracy

• Court: Court of Criminal Appeals of Texas
• Decided: January 28, 2015
• Docket: WR-82,182-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-82,182-01

EX PARTE ROBERT TRACY WATERFIELD, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. F10-61655-Y IN THE CRIMINAL DISTRICT COURT NO. 7 FROM DALLAS COUNTY

Per curiam.

ORDER

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 a writ of habeas corpus. Ex parte

Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of aggravated sexual

assault of a child and sentenced to life imprisonment. The Fifth Court of Appeals affirmed his

conviction. Waterfield v. State, No. 05-12-00646-CR (Tex. App.—Dallas Jul. 31, 2013) (not

designated for publcation).

Applicant contends that his appellate counsel rendered ineffective assistance because counsel

failed to timely notify Applicant that his conviction had been affirmed and failed to advise him of

his right to petition pro se for discretionary review. The trial court found that Applicant did not learn 2

his conviction was affirmed in a timely fashion. However, the writ record does not contain a

response from appellate counsel or findings addressing counsel’s performance.

Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington,

466 U.S. 668 (1984); Ex parte Wilson, 956 S.W.2d 25 (Tex. Crim. App. 1997). In these

circumstances, additional facts are needed. Pursuant to 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 order appellate counsel 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).

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 and conclusions of law as to whether Applicant’s

appellate counsel timely informed Applicant that his conviction had been affirmed and that he has

a right to file a pro se petition for discretionary review. Should the trial court find that counsel erred,

it shall make additional findings addressing whether Applicant was prejudiced. 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. 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 forwarded to this Court within 120 days of the date of this order. Any extensions of time shall 3

be obtained from this Court.

Filed: January 28, 2015 Do not publish