Guzman, Ex Parte Raul Avalos

• Court: Court of Criminal Appeals of Texas
• Decided: August 24, 2011
• Docket: AP-76,613
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. AP-76,613

EX PARTE RAUL AVALOS GUZMAN, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 1187487 IN THE 351 ST DISTRICT COURT FROM HARRIS COUNTY

Per curiam. A LCALA, J., not participating.

OPINION

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 forty-five years’ imprisonment.

Applicant contends, inter alia, that his counsel rendered ineffective assistance because he

failed to timely file a notice of appeal. Trial counsel filed an affidavit stating that “[n]o discussion

with respect to appealing the convictions by our office were had with either [Applicant] and/or

family.” 2

Applicant was sentenced in a companion case on the same day as the instant case and

managed to perfect appeal acting pro-se, but his conviction was affirmed after appointed counsel

filed an Anders brief and was allowed to withdraw. Guzman v. State, No. 01-09-00934 (Tex.

App.–Houston [1st Dist.] Dec. 2, 2010) (unpublished). The trial court has determined that Applicant

is not entitled to an out-of-time appeal in the instant case because the appeal in the companion case

was without merit.

Counsel has a duty “to consult with and fully to advise his client concerning meaning and

effect of the judgment rendered by the court, his right to appeal from that judgment, the necessity

of giving notice of appeal and taking other steps to pursue an appeal, as well as expressing his

professional judgment as to the possible grounds for appeal and their merit, and delineating

advantages and disadvantages of appeal.” Ex parte Axel, 757 S.W.2d 369, 375 (Tex. Crim. App.

1988). Based on his affidavit, trial counsel did not fulfill his duties under Axel.

We find, therefore, that Applicant is entitled to the opportunity to file an out-of-time appeal

of the judgment of conviction in Cause No. 1187487 from the 351st Judicial District Court of Harris

County. Applicant is ordered returned to that time at which he may give a written notice of appeal

so that he may then, with the aid of counsel, obtain a meaningful appeal. All time limits shall be

calculated as if the sentence had been imposed on the date on which the mandate of this Court issues.

We hold that, should Applicant desire to prosecute an appeal, he must take affirmative steps to file

a written notice of appeal in the trial court within 30 days after the mandate of this Court issues.

Applicant’s remaining claims are dismissed. Ex Parte Torres, 943 S.W.2d 469 (Tex. Crim.

App. 1997). 3

Delivered: August 24, 2011 Do Not Publish