EX PARTE MANUEL ROSSEL (other)

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-67,847-02

EX PARTE MANUEL ROSSEL, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 955543-A IN THE 177TH DISTRICT COURT

FROM HARRIS 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 murder and sentenced to ninety-nine years' imprisonment. The Fourteenth Court of Appeals affirmed his conviction. Rossel v. State, No. 14-05-958-CR (Tex. App. - Hou. [14th], delivered February 10, 2005, pet. ref'd).

Applicant contends that he filed an application for habeas corpus on December 27, 2006, alleging that his trial counsel rendered ineffective assistance, and then filed a supplemental application on April 7, 2007, alleging that his appellate counsel was ineffective. Only the supplemental application is included in this record. An original application for writ of mandamus, WR-67,847-01, was held in abeyance August 22, 2007, requiring the district clerk to respond to applicant's allegation that he had filed a previous application which was not included in this record, but no response has yet been received.

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 making findings of fact. The trial court shall provide Applicant's trial counsel with the opportunity to respond to Applicant's original claim of ineffective assistance of counsel if the original application can be located, or shall provide applicant a reasonable opportunity to re-file that application. 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 the performance of Applicant's trial attorney was deficient 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 applicant's other allegations, 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: April 9, 2008

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