Napoles-Perez, Jorge

• Court: Court of Criminal Appeals of Texas
• Decided: June 27, 2018
• Docket: WR-88,553-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-88,553-01

EX PARTE JORGE NAPOLES-PEREZ, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 2014CRO000874D2(A) IN THE 111TH DISTRICT COURT FROM WEBB COUNTY

Per curiam.

ORDER

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 two counts of

attempted capital murder, one count of robbery, and three counts of aggravated robbery. He was

sentenced to imprisonment for five terms of life and one term of ten years.

Applicant contends that trial counsel failed, among other things, to consult with him and

explain the advantages and disadvantages of an appeal. See Ex parte Axel, 757 S.W.2d 369, 374

(Tex. Crim. App. 1988) (“[T]rial counsel, retained or appointed, has the duty, obligation and

responsibility to consult with and fully to advise his client concerning meaning and effect of the 2

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 possible grounds for appeal and their merit, and delineating advantages and disadvantages of

appeal.”).

Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington,

466 U.S. 668 (1984); Ex parte Patterson, 993 S.W.2d 114, 115 (Tex. Crim. App. 1999); Ex parte

Axel, 757 S.W.2d 369 (Tex. Crim. App. 1988). In these circumstances, additional facts are needed.

As we held in Ex parte Rodriguez, 334 S.W.2d 294, 294 (Tex. Crim. App. 1960), the trial court is

the appropriate forum for findings of fact. The trial court shall order trial counsel to respond and

explain whether he complied with Ex parte Axel, 757 S.W.2d 369 (Tex. Crim. App. 1988).1 The trial

court may use any means set out in TEX . CODE CRIM . PROC. art. 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 wishes to be represented by counsel, the trial court shall appoint an

attorney to represent Applicant at the hearing. TEX . CODE CRIM . PROC. art. 26.04.

The trial court shall make findings of fact and conclusions of law as to whether Applicant

was denied his right to a meaningful appeal because trial counsel failed to comply with Ex parte

Axel. The trial court shall also make any other findings of fact and conclusions of law that it deems

relevant and appropriate to the disposition of Applicant’s claim for habeas corpus relief.

This application will be held in abeyance until the trial court has resolved the fact issues. The

issues shall be resolved within 90 days of this order. A supplemental transcript containing all

1 In its response, the State cited Frazer v. South Carolina, 430 F.3d 696, 705 (4th Cir. 2005), as authority for trial counsel’s duties regarding direct appeal. This Court is not bound by decisions from the Fourth Circuit. Ex parte Axel is the controlling case law. 3

affidavits and interrogatories or the transcription of the court reporter’s notes from any hearing or

deposition, along with the trial court’s supplemental findings of fact and conclusions of law, shall

be forwarded to this Court within 120 days of the date of this order. Any extensions of time must

be requested by the trial court and shall be obtained from this Court.

Filed: June 27, 2018 Do not publish