Calabrese, Salvatore Jr. AKA Calabrese, Sammy Jr.

• Court: Court of Criminal Appeals of Texas
• Decided: March 11, 2020
• Docket: WR-90,885-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-90,885-01

EX PARTE SALVATORE CALABRESE JR., Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. CR05-362B IN THE 235TH DISTRICT COURT FROM COOKE COUNTY

Per curiam.

ORDER

Applicant was convicted of murder and sentenced to thirty-five 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 that he was denied his right to an appeal because counsel failed to timely

file a notice of appeal. 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 2

findings of fact. TEX . CODE CRIM . PROC. art. 11.07, § 3(d). The trial court shall order trial counsel1

to respond to Applicant’s claim. 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 through no fault of his own. The trial court may make any other

findings and conclusions that it deems appropriate. Also, the trial court shall make findings on

laches. Carrio v. State, 992 S.W.2d 486, 487-88 (Tex. Crim. App. 1999); overruled in part by Ex

parte Perez, 398 S.W.3d 206, 213-15 (Tex. Crim. App. 2013).

The trial court shall make its 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,

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: March 11, 2020 Do not publish

1 If a defendant decides to appeal his conviction, 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.