









IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NOS. WR-68,918-01 & WR-68,918-02


EX PARTE BRIAN LYNN SMITH, Applicant





ON APPLICATIONS FOR WRITS OF HABEAS CORPUS
CAUSE NOS. 09838-A & 09480-A IN THE 29TH JUDICIAL DISTRICT COURT

FROM PALO PINTO 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 these applications for writs of habeas corpus.  Ex parte Young, 418
S.W.2d 824, 826 (Tex. Crim. App. 1967).  Applicant was convicted of one charge of murder and one
charge of attempted murder and was sentenced to life imprisonment.  The Eleventh Court of Appeals
affirmed his convictions.  Smith v. State, Nos. 11-94-00017-CR and 11-94-00018-CR (Tex. App. -
Eastland, February 2, 1995, no pet).  
	Applicant contends that his appellate counsel rendered ineffective assistance because counsel failed
to timely notify Applicant that his convictions had been affirmed and failed advise him of his right to petition
for discretionary review pro se.
	Applicant has alleged facts that, if true, might entitle him to relief.  Strickland v. Washington, 466
U.S. 608 (1984); Ex parte Lemke, 13 S.W.3d 791,795-96 (Tex. Crim. App. 2000).  In these
circumstances, additional facts are needed.  Pursuant to Ex parte Rodriguez, 334 S.W.2d 294, 294 (Tex.
Crim. App. 1997), the trial court is the appropriate forum for findings of fact.  The trial court shall provide
appellate counsel with the opportunity to respond to Applicant's claim of ineffective assistance of counsel
on appeal.  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's appellate counsel timely
informed Applicant that his convictions had been affirmed and that he has a right to file a pro se petition
for discretionary review.  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.
	These applications 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 19, 2007
Do not publish
