## I N T H E C O U R T O F C R I M I N A L A P P E A L S O F T E X A S NO. WR-82,174-01

EX P ARTE ANTHONY SATT ERWHITE , Appli cant

ON AP P LICATION FOR A WRIT OF HABEAS CORP US CAUSE NO. 07CR2647-B IN THE 117TH DISTRICT COURT

F ROM NUECES COUNTY

Per curiam . O R D E R Pursuant to the provisi o n s o f Ar t icle 11.07 of the Texas Code of Criminal Procedur e, the cler k of the trial court transmitted to this Court this application for a writ of habea s corpus. Ex parte Y oung , 418 S. W.2d 824, 826 (Tex. Crim. App. 1967). Applicant pleade d g uilty to ag g rava ted assault in exchang e for defe rre d adjudication community supervision. He was later adjudicate d g uilty and
sentenc ed to fiftee n y ear s’ imprisonment. The Thirteenth Court of Appea ls dismiss ed his appea l pursuant to a motion filed by Applicant by and throug h his attorney

. Satterwhite v. State , No. 13-12- 00494-CR (Tex. App. – Corpus Christ i - Edinburg , May 9 , 2013). t h Applicant contends that his appellate counsel rende red ineffe ctive assist an ce b ecause appellate counsel did not communicate adequately with Applicant reg arding the appea l. Applicant2

alleg es that appellate cou n s el t old Applicant that he was pursuing a motion to rec onsider the adjudication and g et Applicant’s community supervision reinstated. Applicant alleg es that the last time he met with appellate counsel, counsel g ave him some paper s to sign, which Applicant believed perta ined to the motion to rec onsider. Applicant alleg es that he has not hear d from appellate counsel since signing those paper s, despite having written to appellate counsel to inquire about the status of his appea l. Applicant has alleg ed facts t hat, i f t rue, might en t i t l e h i m to relief

. Smith v. Robbins , 528 U.S. 259, 285-86 (2000); Strickland v. W ashington , 466 U.S. 668 (1984). I n these c ircumstance s, additional fac ts are neede d. As we held in Ex parte Rodriguez , 334 S.W .2d 294, 294 (Tex. Crim. App. 1960), the tria l court is the appr opriate f orum for f

indings of f

act. The trial court sha ll order appellate counsel to respond to Applicant’s claim of ineffe ctive assistance of counsel. Specifica lly , appellate counsel shall state what advice he g ave to Applicant with respe ct to the direc t ap p eal. Appellate counsel shall state whether he told Applicant that he would file a motion to rec onsider and try to g et Applicant’s community supervision reinstated. Appellate counsel shall state when and for what rea son(s) Applicant decide d to abandon the appea l, and shall state whether he ob t ai n ed Applicant’ s ap p ro v al befor e filing the motion to dismiss the appea l. The trial court may use any means set out in T E X . C O D E C R I M . P R O C . art. 11.07, § 3(d)

. I f t he trial cou rt elec ts to hold a hearing , it shall deter mine whether Applicant is indige nt. I f Applicant is indige nt and wishes to be repr esente d by counsel, the trial co u rt s hall appoint an attorney to repre sent Applicant a t the hear ing. T E X . C O D E C R I M . P R O C . art. 26.04. The trial court s h al l m ake finding s of fac t and conclusions of law as to whether the perf ormanc e of Applicant’s appellate counsel was defic ient and, if so, whether counsel’s defic ient3

perf ormanc e prejudice d Applicant. The trial court shall als o make any other finding s of fac t and conclusions of law that it deems rele vant and appropr iate to the dispositi on of Applicant’s claim for habea s corpus re lief. This application will be held in abey ance until the trial court has resolved the fac t issues. The issues shall be resolved within 90 day s of this order

. A s u p p l em en t al transcr ipt containing all aff idavits and int err og atories or the t ransc ription of t he court repor ter’s notes from any hear ing or deposition, along with the trial court’ s supplemental finding s of fa ct and c onclusions of law, shall be for war ded to this Court withi n 120 day s of the date of t his order

. Any extensions of t ime shall be obtained f

rom this Court.

Filed: Oc tober 15, 2014 Do not publish