









IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. WR-76,587-02


EX PARTE ROBERT EARL HOLMES, Applicant





ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 1251976 IN THE 228TH JUDICIAL DISTRICT COURT

FROM HARRIS 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 writ of habeas corpus.  Ex parte
Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967).  Applicant was convicted of violation of a
protective order and sentenced to eight years' imprisonment.
	Applicant contends that his counsel rendered ineffective assistance because counsel failed
to preserve his right to appeal by notifying him of what an appeal was, or how to file one.  Applicant
attempted to file a pro se notice of appeal, but it was untimely and the appeal was dismissed. 
Applicant's trial counsel has provided an affidavit, in which he states that he advised Applicant of
his right to appeal, and of the deadlines for doing so.  However, the affidavit does not state whether
Applicant was asked if he wanted to appeal, or indicated any desire to appeal.
	Applicant has alleged facts that, if true, might entitle him to relief.  Strickland v. Washington,
466 U.S. 668 (1984); Ex parte Lemke, 13 S.W.3d 791,795-96 (Tex. Crim. App. 2000).   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.  The trial court
shall obtain an additional affidavit from trial counsel, stating whether he specifically advised
Applicant of how to pursue an appeal, as to whether he asked Applicant whether he wanted to
appeal, and as to whether Applicant expressed any desire to appeal.  Counsel shall state whether he
advised Applicant of how to request appointment of appellate counsel, and shall state why he did not
file notice of appeal on Applicant's behalf.  The trial court may use any means set out in Tex. Code
Crim. Proc. art. 11.07, § 3(d).  In the appropriate case, the trial court may rely on its personal
recollection.  Id.
	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 as to whether Applicant was denied his right to a
meaningful appeal because Applicant's counsel failed to timely file a notice of appeal.  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.  If any continuances are granted, a copy of the
order granting the continuance shall be sent to this Court.  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 returned to this Court within 120 days of the date of this order.  Any extensions of time shall be
obtained from this Court.

Filed: December 14, 2011
Do not publish
