Bush, Kolton Joe Bailey

• Court: Court of Criminal Appeals of Texas
• Decided: October 6, 2021
• Docket: WR-93,094-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-93,094-01

EX PARTE KOLTON JOE BAILEY BUSH, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. W13410-1 IN THE 355TH DISTRICT COURT FROM HOOD COUNTY

Per curiam.

ORDER

Applicant pleaded guilty to delivery of a controlled substance in exchange for deferred

adjudication community supervision. He later pleaded true to violating the terms of his community

supervision, and was adjudicated guilty and sentenced to thirty years’ imprisonment. He filed this

application for a writ of habeas corpus in the county of conviction, and the district clerk forwarded

it to this Court. See TEX . CODE CRIM . PROC. art. 11.07.

Applicant contends, among other things,1 that he was denied his right to an appeal because

adjudication counsel told him that he would appeal from the sentence, but failed to timely file a

1 This Court has reviewed Applicant’s other claims and finds them to be without merit. 2

notice of appeal and did not respond to Applicant’s attempts to contact him until after the deadline

for filing notice of appeal had passed. Applicant has alleged facts that, if true, might entitle him to

relief. Ex parte Axel, 757 S.W.2d 369 (Tex. Crim. App. 1988); Jones v. State, 98 S.W.3d 700 (Tex.

Crim. App. 2003). Accordingly, the record should be developed. The trial court is the appropriate

forum for findings of fact. TEX . CODE CRIM . PROC. art. 11.07, § 3(d). The trial court shall order

adjudication counsel2 to respond to Applicant’s claim. Specifically, adjudication counsel shall state

whether he advised Applicant that he would appeal the sentence after adjudication, whether

Applicant expressed a desire to appeal the sentence, and if so, why counsel did not file notice of

appeal on Applicant’s behalf. In developing the record, the trial court may use any means set out in

Article 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 wants to be represented by counsel, the trial court shall

appoint counsel to represent him at the hearing. See TEX . CODE CRIM . PROC. art. 26.04. If counsel

is appointed or retained, the trial court shall immediately notify this Court of counsel’s name.

The trial court shall make findings of fact and conclusions of law as to whether Applicant

was denied his right to an appeal because adjudication counsel failed to timely file a notice of appeal.

The trial court may make any other findings and conclusions that it deems appropriate in response

to Applicant’s claims.

The trial court shall make findings of fact and conclusions of law within ninety days from

the date of this order. The district clerk shall then immediately forward to this Court the trial court’s

findings and conclusions and the record developed on remand, including, among other things,

2 If a defendant decides to appeal his conviction or sentence, trial counsel rather than appellate counsel has the duty to ensure that written notice of appeal is filed with the trial court. Jones, 98 S.W.3d at 703. 3

affidavits, motions, objections, proposed findings and conclusions, orders, and transcripts from

hearings and depositions. See TEX . R. APP. P. 73.4(b)(4). Any extensions of time must be requested

by the trial court and obtained from this Court.

Filed: October 6, 2021 Do not publish