EX PARTE MICHAEL LYNN HENDERSON, Applicant (Other)
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IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-77,918-01 EX PARTE MICHAEL LYNN HENDERSON, Applicant ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 2007-1731-C2A IN THE 54TH DISTRICT COURT FROM MCLENNAN 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 murder and sentenced to sixty-five years imprisonment. The Tenth Court of Appeals affirmed his conviction. Henderson v. State, No. 10-07-00394-CR (Tex. App. Waco, August 26, 2009). 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. In support of his claim, Applicant provides copies of an inquiry to and response from the prison mail room indicating that he received no legal 2 mail from appellate counsel in November of 2011. However, the applicable period during which Applicant should have received notice would be August and September of 2009, not November of 2011. 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 also obtain an affidavit from the unit mail room stating whether or not Applicant received any legal mail from his appellate counsel during the period of August and September of 2009. The trial court may use any means set out in TEX . CODE CRIM . PROC. art. 11.07, ยง 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. 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 3 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 be obtained from this Court. Filed: August 22, 2012 Do not publish
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