Castillo, Ismael

• Court: Court of Criminal Appeals of Texas
• Decided: January 11, 2023
• Docket: WR-94,429-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-94,429-01

EX PARTE ISMAEL CASTILLO, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 18FC-1930-H(1) IN THE 347TH DISTRICT COURT FROM NUECES COUNTY

Per curiam.

ORDER

Applicant was convicted of one count of capital murder and one count of engaging in

organized criminal activity, and sentenced to life imprisonment without possibility of parole. The

Thirteenth Court of Appeals affirmed his conviction. Castillo v. State, No. 13-19-00567-CR (Tex.

App. — Corpus Christi – Edinburg February 25, 2021) (not designated for publication). Applicant

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 although appellate counsel advised him at some point of the

possibility of filing a pro se petition for discretionary review, appellate counsel did not timely and

properly advise him of the deadlines and procedures for doing so. Applicant has alleged facts that, 2

if true, might entitle him to relief. Ex parte Wilson, 956 S.W.2d 25 (Tex. Crim. App. 1997); Ex

parte Crow, 180 S.W.3d 135 (Tex. Crim. App. 2005). 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 appellate counsel to respond to Applicant’s claim. Specifically,

appellate counsel shall state whether he timely advised Applicant that his conviction had been

affirmed, sent Applicant a copy of the appellate opinion, and advised Applicant that he had the right

to file a pro se petition for discretionary review. If appellate counsel did timely provide this

information to Applicant, appellate counsel shall state why he did not file a letter with the court of

appeals certifying compliance with Rule 48.4 of the Texas Rules of Appellate Procedure. Appellate

counsel shall provide documentation of any correspondence with Applicant detailing his right to and

the deadlines and procedures for filing a pro se petition for discretionary review. 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 appellate

counsel timely informed Applicant of his right to file a pro se petition for discretionary review, and

of the deadlines and procedures for doing so. The trial court shall also determine whether Applicant

would have timely filed a petition for discretionary review but for appellate counsel’s alleged

deficient performance. The trial court may make any other findings and conclusions that it deems

appropriate in response to Applicant’s claims. 3

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,

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: January 11, 2023 Do not publish