                IN THE COURT OF CRIMINAL APPEALS
                            OF TEXAS
                                            NO. WR-86,292-02


                    EX PARTE ABDONAL DELGADO CESPEDES, Applicant


                    ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                    CAUSE NO. 1177834-A IN THE 179TH DISTRICT COURT
                                 FROM HARRIS COUNTY


       Per curiam. Alcala, Newell, JJ. not participating.

                                                 ORDER

       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 a writ of habeas corpus. Ex parte Young, 418

S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of aggravated sexual assault of a child

and sentenced to life imprisonment. The First Court of Appeals affirmed his conviction. Cespedes v.

State, No. 01-09-00866-CR (Tex. App.—Houston Mar. 10, 2011)(not designated for publication).

       Applicant contends that his appellate counsel rendered ineffective assistance because counsel failed

to timely notify Applicant that his conviction had been affirmed and failed to timely inform him of his right

to file a pro se petition for discretionary review.

       Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466

U.S. 668 (1984); Ex parte Wilson, 956 S.W.2d 25 (Tex. Crim. App. 1997). In these circumstances,
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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 a response

from appellate counsel regarding 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).

       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 and conclusions of law as to whether Applicant’s

appellate counsel timely informed Applicant that his conviction had been affirmed, that he had a right to

filed a pro se petition for discretionary review, and that counsel was not filing such a petition on

Applicant’s behalf. 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. 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 forwarded to this Court

within 120 days of the date of this order. Any extensions of time must be requested by the trial court and

shall be obtained from this Court.



Filed: April 5, 2017
Do not publish
