EX PARTE DAVID ALLEN VAN DYNE (other)

IN THE COURT OF CRIMINAL APPEALS 
OF TEXAS 

NO. WR-74,235-01 
EX PARTE DAVID ALLEN VAN DYNE, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 05-05403-CRF-272 IN THE 272ND DISTRICT COURT 
FROM BRAZOS 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 two counts of aggravated sexual assault of a child and sentenced to two concurrent sentences of life imprisonment. The Tenth Court of Appeals affirmed his conviction. Vandyne v. State, No. 10-07-00328-CR (Tex. App.-Waco, May 27, 2009) (unpublished).

Applicant contends that his appellate counsel rendered ineffective assistance because counsel failed to timely notify Applicant that his conviction had been affirmed. Applicant contends that a copy of the appellate opinion was delivered to the Telford Unit in New Boston on June 1, 2009 but that he was not on the Telford Unit at the time and did not receive notice of the Tenth Court's opinion until after 30 days to file a petition for discretionary review had passed.

This Court determined that Applicant's claim could have merit and remanded to the trial court to make findings of fact addressing, among other things, when Applicant received the notice. The trial court made findings of fact, determining a copy of the appellate opinion was received at the Telford Unit on June 1, 2009 and concluding that Applicant received the opinion when he returned to the Telford Unit on June 15, 2009, approximately one week before his deadline to file a pro-se PDR would run. However, nothing in the habeas record or the trial court's findings of fact show when Applicant received the notice. Accordingly, the conclusion that Applicant received timely notice is not supported by the current record.

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); Ex parte Riley, 193 S.W.3d 900, 902 (Tex. Crim. App. 2006). 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.

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 additional findings of fact as to when Applicant actually received notice that his conviction had been affirmed.

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: February 9, 2011

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