EX PARTE RODNEY CORDELL EDWARDS (other)

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS



NO. WR-74,652-01

EX PARTE RODNEY CORDELL EDWARDS, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 28048CR 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 a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of burglary of a habitation and sentenced to thirty years' imprisonment. The Tenth Court of Appeals affirmed his conviction. Edwards v. State, No. 10-04-00195-CR (Tex. App.-Waco Aug. 3, 2005, no pet.).

Applicant contends that trial counsel rendered ineffective assistance because, among other things, he failed to investigate and subpoena a co-defendant who could have provided exculpatory evidence. Applicant also contends that appellate counsel (1) failed to advise Applicant of his right to file a pro se petition for discretionary review.

On September 29, 2010, we remanded this application and directed the trial court to make findings of fact and conclusions of law. After reviewing a sworn affidavit counsel filed in response to Applicant's claims, the trial court made findings of fact and concluded that Applicant had not established that counsel was ineffective. We agree that Applicant has not established that counsel was ineffective for failing to investigate and subpoena a co-defendant. However, we believe that the record is not sufficient to resolve Applicant's other claim. In his affidavit, counsel stated that he advised Applicant that he could file a pro se petition for discretionary review. According to an August 12, 2005 letter that Applicant forwarded with his application, counsel sent Applicant a copy of the opinion affirming his conviction, but counsel did not advise Applicant of his right to file a pro se petition for discretionary review in this letter.

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 order counsel, Todd Phillippi, to respond to Applicant's claim and to state whether he advised Applicant of his right to file a pro se petition for discretionary review in any such letter or otherwise. The trial court shall also order counsel to produce this letter, if it exists, or evidence of other communication. 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 him at the hearing. Tex. Code Crim. Proc. art. 26.04.

The trial court shall make further findings of fact and conclusions of law as to whether Applicant was denied his right to file a pro se petition for discretionary review because counsel failed to advise Applicant of this right. 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: September 14, 2011

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1. Appellate counsel was also trial counsel in this cause.

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