IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-81,086-01

EX PARTE PHILLIP EDWARD JOHNSON, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. W-59278-01-A IN THE 47TH DISTRICT COURT

FROM POTTER 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 possession with intent to deliver a controlled substance and sentenced to eighty years’ imprisonment. The Seventh Court of Appeals affirmed his conviction. Johnson v. State, No. 07-11-00186-CR (Tex. App.—Amarillo 2013, no pet.).

            Applicant contends that appellate counsel failed to timely notify him that his conviction had been affirmed. 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. 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. Appellate counsel filed a sworn affidavit in response to Applicant’s claim, but the trial court may order appellate counsel to supplement his response. 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 findings of fact and conclusions of law and determine: (1) whether Applicant told counsel to communicate through Applicant’s family; (2) whether counsel copied the court of appeals’s opinion and drafted a letter advising Applicant of his right to file a pro se petition for discretionary review; and (3) when, if at all, counsel communicated with Applicant’s family after Applicant’s conviction had been affirmed. 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 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: April 2, 2014

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