## 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-81,495-02

EX P ARTE DERRICK

JERMAILE SHE RF IELD, App licant

ON AP P LICATION FOR A WRIT OF HABEAS CORP US CAUSE NO. 1264401-A IN THE 179TH DIS TRICT COURT

F ROM HARRIS 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 (Te x . C ri m . App. 1967). Applicant was convicted of ag g rava ted robber y and sentenc ed to thirty -five y ear s’ imprisonment. Acc ording to the rec ord, he did not appea l his conviction. App l icant contends that he filed a “motion for appea l” on Dec ember 13, 2012, and that counsel advised him that he had to file the appea l himself. The trial court made finding s of fac t and conclusions of law i n response to Applicant’s ineffe ctive assistance of counsel claim. I t

rec ommended that we deny relief

.2

We do not believe that the rec ord is a dequate to r esolve Applicant’s claims. Applicant has alleg ed fac ts that, if true, might entitle him to relief

. 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 i n 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 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 court elects t o hold a hearing , it shall deter mine whether Applican t is indige nt. I f Applicant is indige nt and wi s h es to be repr esente d by counsel, the trial court shall appoint an attorney to repre sent him at the hea ring . T E X . C O D E C R I M . P R O C . art. 26.04. The trial court shall make fur t h er fi ndings of fac t and conclusions of law as to whether Applicant waived his rig ht to appea l. Although there is not a waiver of appea l in the plea paper s that

wer e forwar ded to this Court, t he judg ment say s that appea l was wa ived and pe rmission to appea l

was not g rante d. The tri al co u rt s h al l also make further finding s and conclusions as to whether Applicant filed a timely and proper pro se notice of appea l or a document purporting to be a notice of appea l. Finally , the trial court shall deter mine whether Applicant was denied his rig ht to appea l. The trial court sh al l al s o make any other finding s of fac t and conclusions of law that it deems rele vant and a

ppropriate to the dispositi on of Applica nt’s claim for ha

beas c orpus re lief. This application will be held in abey ance until the trial court has resolved the fac t issues. The i s s u es s h al l be 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 for war ded to this Court withi n 120 day s of t he date of t his order

. Any extensions of time shall3

be obtained f

rom this Court.

Filed: September

17, 2014 Do not publish