## 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-86,007-01

EX P ARTE JOSE P H LOPEZ, A ppl icant

ON AP P LICATION FOR A WRIT OF HABEAS CORP US CAUSE NO. W13-40586-L IN THE CRIMINAL DISTRICT COURT NO. 5 F ROM DALLAS 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 enter ed an open plea of g uilty to ag g rava ted sexual assault of a c hild, and was sente nced to twelve y ear s’ i mprisonment. The F ifth Court of Appea ls dismiss ed his appea l for want of jurisdiction beca

use notice of appea l was untimely filed. Lopez v. State , No. 05-16-00284- CR (Tex. App. — Dallas, Marc h 11, 2016) (not desig nated for publication).2

Applicant contends, among other things, that his trial c o u n s e l r e n d e r e d in e f

f ective assistance 1 beca use counsel failed to adequa tely consult with him prior to trial, failed to investigate or interview witnesses, failed to show Applicant any of the evidenc e or discovery , and failed to advise Applicant reg ardingthe dea dline for f iling notice of

appea l

.

2 Applicant has alleg ed fac ts that, if true, might entitle him to relief

. Strickland v. W

ashington , 466 U.S. 668 (1984); Ex parte Patterson , 993 S.W .2d 114, 115 (Tex. Crim. App. 1999). I n these circ umstances, additional fac ts are neede d. As we held in Ex parte Rodriguez , 334 S.W .2d 294, 294 (Tex. Crim. App. 1960), the trial court is the appropr iate forum for finding s of fac t. The trial court shall order trial counsel to r espond to A pplicant’s claims of ineffe ctive assistance of counsel. 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 n the appropr iate ca se, the trial c ourt may rely on its personal re collection. Id

. I f the trial c ourt elec ts to hold a hearing , it shall determine whether Applicant is indig ent. I f Applicant is indige nt and wish es t o be repr esente d by counsel, the trial court shall appoint an attorney to repre sent Applicant at the hear ing. T E X . C O D E C R I M . P R O C . art. 26.04. The trial court shall make fi n d i n gs of fac t and conclusions of law as to whether the perf ormanc e of Applicant’s trial counsel was defic ient and, if so, wheth er co unsel’s defic ient perf ormanc e prejudice d Applicant. The trial court shall make finding s as to whether Applicant was advised of his a

ppellate rig hts, a

nd as to whether he expressed a de sire to appe al. I f Applicant did

This Court has considere d Applicant’s other claims and finds them to be w ithout merit. 1 Applicant ac tually

alleg es that trial counse l failed to advise him that he ha d thirty day s 2 afte r sentenc ing in whic h to file a pe tition for discretionar y revie w. In light of the dismiss al of Applicant’s dire ct appe al bec ause his pro se notice of a ppeal wa s untimely , it is probable that Applicant is ref

err ing to the time pe riod for f iling notice of

appea l, rather

than a pe tition for discretionar

y revie w.3

express a desire to appea l, the trial court shall make finding s as to whether appellate counsel was appointed, and if not, why not. The tr i al co u rt s h al l also 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 abeyance until the trial court has resolved the fac t issues. The issue s s h al l b e resolved within 90 day s of this order

. A supplemental 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 forwar ded to t his Court withi n 120 day s of the date of this order. Any extensions of ti me m ust be re quested by

the trial cour

t and shall be obtaine d from this Court.

Filed: De cembe r 7, 2016 Do not publish