Caldera, Ex Parte Anastacio Pacheco

• Court: Court of Criminal Appeals of Texas
• Decided: May 5, 2004
• Docket: AP-74,945
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. 74,945 EX PARTE ANASTACIO PACHECO CALDERA, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

FROM DALLAS COUNTY

Price, J., filed a concurring opinion.

O P I N I O N

I agree with the majority that the applicant is entitled to an out-of-time appeal because the record supports the trial court's findings and conclusions that his counsel was aware that the applicant wanted to appeal but counsel failed to file the notice of appeal. I write separately because the trial court also found that counsel was ineffective in failing to call two witnesses that could corroborate the applicant's theory of the case. If the findings are supported by the record, the applicant is entitled to a new trial. ⁽¹⁾ It has been our custom, however, to allow an applicant to pursue his direct appeal rather than address the merits of other substantive claims when the applicant shows that he was denied his right to appeal his conviction and by his counsel's defective performance. ⁽²⁾

In this case, the convicting court found that the two witnesses, Jorge Gallegos and Adam Flores, were willing and available to testify at the time of trial and that their testimony would have been of benefit to the applicant. The court concluded that counsel's performance was deficient and that the applicant was prejudiced by this deficient performance. Because of our disposition of this case, the applicant is being returned "to the point at which he can give notice of appeal," ⁽³⁾ and "all time limits shall be calculated as if the conviction had been entered on the day that the mandate of this Court issues." ⁽⁴⁾

Because the applicant will be returned to the point when conviction was entered, I see no reason why the applicant could not file a motion for new trial on the basis of ineffective assistance of trial counsel for the failure to call the two witnesses. And I see no reason why, given the trial court's findings and conclusions, the trial court should not grant the applicant a new trial.

With these comments, I join the majority.

Filed: May 5, 2004.

DO NOT PUBLISH

1.

See Strickland v. Washington, 466 U.S. 668, 687 (1984).

2.

See, e.g., Ex parte Torres, 943 S.W.2d 469, 472 (Tex. Crim. App. 1997) ("Moreover, because granting an out-of-time appeal restores the pendency of the direct appeal, any remaining substantive claims would be premature, and hence, subject to dismissal").

3.

Ante, at 2.

4.

Ibid.