EX PARTE WILLIAM EARL DOOLEY (other)

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-75,588-01

EX PARTE WILLIAM EARL DOOLEY, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. W-92,67437-N(A) IN THE 195TH JUDICIAL DISTRICT COURT

FROM DALLAS 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 entered an open plea of guilty to delivery of a controlled substance and was sentenced to twenty years' imprisonment.

Applicant contends, inter alia, that his counsel rendered ineffective assistance because counsel failed to timely file a notice of appeal. Applicant alleges that he was advised that he could appeal by the sentencing court, and that he told counsel that he wanted to appeal, but that he never heard from counsel again. The trial court recommends dismissing this application, based on an affidavit provided by the State indicating that Applicant has discharged his sentence in this case. The information provided in the affidavit is incorrect. Applicant, although currently out on parole or mandatory supervision, will not discharge his sentence in this case until 2012.

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 provide counsel with the opportunity 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). 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 told his trial counsel that he wanted to appeal, and if so, whether counsel filed a notice of appeal, or whether appellate counsel was appointed. The trial court shall make findings as to whether Applicant was denied his right to a meaningful appeal because Applicant's counsel failed to timely file a notice of appeal. 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: April 6, 2011

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