Holguin, Ex Parte Sergio

• Court: Court of Criminal Appeals of Texas
• Decided: January 18, 2006
• Docket: AP-75,180
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

No. AP-75,180 Ex parte SERGIO HOLGUIN, Applicant

APPLICATION FOR WRIT OF HABEAS CORPUS

FROM THE 210th DISTRICT COURT

EL PASO COUNTY

Holcomb, J., delivered the opinion of the Court, in which Keller, P.J., Meyers, Price, Johnson, Keasler, Hervey, and Cochran, JJ., join. Womack, J., concurs in the result.

This is a post-conviction habeas corpus proceeding, initiated under Article 11.07 of the Texas Code of Criminal Procedure, in which Sergio Holguin seeks relief in Cause Number 59656 in the 210th Judicial District Court of El Paso County. The relevant facts, as reflected in the habeas record, are as follows. In November 1990, an El Paso County grand jury returned an indictment charging Holguin with burglary of a building under Texas Penal Code § 30.02(a)(3). In January 1991, a petit jury found him guilty as charged in the indictment. In that same month, the trial court assessed Holguin's punishment at imprisonment for fifteen years and a day. He did not appeal.

In January 2004, Holguin filed an application for writ of habeas corpus in the trial court. In the application, Holguin argued that he had been denied both his right to the effective assistance of counsel and his right to appeal because his trial counsel had failed to pursue an appeal "as he [had] stated he would do." Holguin also argued that the indictment under which he had been tried had been invalid and that the evidence adduced at his trial had been insufficient to support the jury's finding of guilt.

In February 2004, the trial court ordered Holguin's trial counsel to file an affidavit in response to Holguin's claims. In August 2004, trial counsel filed his affidavit, which stated in relevant part:

Mr. Holguin expressed his desire to appeal his conviction and I informed both him and his wife that such would be done, although I related to him/them that I might not be the lawyer who would handle the appeal.

After the sentencing, I informed [the trial court] that Mr. Holguin desired to appeal his conviction, but . . . I asked the Court if someone else could handle the appeal because I did not feel I would have the time to effectively provide appellate legal representation . . . . [The trial court] informed me that he would have the public defender's office or [another lawyer] handle the appeal . . . .

I asked [the trial court] if I should file Notice of Appeal and/or a Motion for Substitution of Counsel. He told me neither would be necessary. He said he would advise newly appointed counsel to file the Notice of Appeal. All I needed to do was file my pay voucher, which I did.

In September 2004, the trial court forwarded Holguin's application to this Court, along with the trial court's findings of fact, conclusions of law, and recommendation that Holguin be granted an out-of-time appeal. In its findings of fact, the trial court found that Holguin had informed his trial counsel that he had wanted to appeal from his conviction but that trial counsel had failed to file any "appellate documents . . . on [Holguin's] behalf."

In May 2005, we ordered Holguin's application filed and set for submission to determine

(1) whether trial counsel failed to provide effective assistance of counsel, (2) if he did not fail, was Holguin denied effective assistance of counsel by the trial court, and (3) if he was not, whether Holguin is entitled to an out-of-time appeal on any other basis that is cognizable on habeas corpus.

Ex parte Holguin, No. AP-75,180 (Tex.Crim.App-May 25, 2005) (not published).

In July 2005, the trial court forwarded supplemental findings of fact to us. In those supplemental findings, the trial court found that "[Holguin's] trial counsel [had] failed to insure that [Holguin's] appeal was perfected and [also had] failed to file a written motion to withdraw before abandoning his representation of [Holguin]." The trial court also "adopted" trial counsel's affidavit "as part of" the supplemental findings of fact. Although we are not bound by a trial court's findings of fact in a habeas corpus action, we generally accept such findings if they are supported by the record, Ex parte Torres, 943 S.W.2d 469, 476 (Tex.Crim.App. 1997), and we will accept the trial court's findings in this case.

Under the Fourteenth Amendment's guarantee of due process of law, a person convicted of a criminal offense is entitled to the effective assistance of counsel on his first appeal of right. Evitts v. Lucey, 469 U.S. 387, 396 (1985). If a person convicted of a criminal offense can show that his attorney's objectively deficient performance actually caused the forfeiture of his first appeal of right, then he is entitled to an out-of-time appeal. Ex parte Crow, ___S.W.3d___, ___, No. AP-75,176 (Tex.Crim.App.-Nov. 23, 2005).

In Ex parte Axel, 757 S.W.2d 369 (Tex.Crim.App. 1988), we examined the requirements of effective assistance of counsel in a situation similar to the one presented here. In Axel, a jury found Clifton Axel, Jr., guilty of aggravated robbery, and the trial court assessed his punishment at imprisonment for 35 years. After sentencing, Axel informed his trial counsel that he wanted to appeal, and he asked his trial counsel to continue to represent him as appellate counsel. Trial counsel, however, had no interest in representing Axel on appeal. Although Axel and his trial counsel had brief discussions concerning the possibility of taking an appeal, trial counsel did not consider it his duty to actually file a notice of appeal, and he did not do so. Nor did trial counsel seek permission from the trial court to withdraw from further representation. Axel, who was in confinement, subsequently attempted to contact his trial counsel about appealing but received no reply. No appeal was in fact ever taken. Axel later filed an application for writ of habeas corpus, contending that he had been denied his right to appeal because his trial counsel had failed to file a notice of appeal. On those facts, we held that Axel had in fact been denied his Fourteenth Amendment right to the effective assistance of counsel on appeal, and we granted him an out-of-time appeal. In the course of our analysis, we explained that trial counsel's representation does not automatically end once punishment has been assessed. Id. at 373. Rather, trial counsel must take whatever steps are necessary to protect his client's right to appeal, including filing a timely notice of appeal, unless trial counsel first files a written motion to withdraw and the trial court expressly grants that written motion to withdraw. Id. at 373-374. If a written motion to withdraw is filed and granted, then the trial court is on notice that appellate counsel must be appointed - unless, of course, the defendant has already retained another attorney to serve as appellate counsel.

Our decision in Axel governs the disposition of this case. Here, Holguin's trial counsel failed to file a written notice of appeal despite the fact that he knew Holguin wished to appeal. Further, trial counsel failed to file a written motion to withdraw and have that motion expressly granted. Although trial counsel's failure to act was perhaps somewhat understandable in context, we nevertheless hold, in line with our decision in Axel, that trial counsel's representation was objectively deficient and that that deficient performance resulted in Holguin forfeiting his first appeal of right.

Accordingly, Holguin is entitled to an out-of-time appeal, and that relief is granted in Cause Number 59656 in the 210th Judicial District Court of El Paso County. For purposes of the Texas Rules of Appellate Procedure, all time limits shall be calculated as if the judgment of conviction had been entered on the day that the mandate of this Court issues. The trial court will ensure that Holguin is represented by appellate counsel. Holguin's remaining habeas corpus claims, which he may wish to raise on appeal, are dismissed as premature. See Ex parte Torres, 943 S.W.2d at 472.

DELIVERED JANUARY 18, 2006.

DO NOT PUBLISH