Ortiz, Juan Jr

• Court: Court of Criminal Appeals of Texas
• Decided: January 29, 2020
• Docket: WR-90,383-02
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-90,383-02

EX PARTE JUAN ORTIZ, JR., Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 18-08-137-CRW-A IN THE 81ST DISTRICT COURT FROM WILSON COUNTY

Per curiam.

ORDER

Applicant was convicted of burglary of a habitation and sentenced to thirty-five years’

imprisonment. The Fourth Court of Appeals dismissed his appeal. Ortiz v. State, No. 14-19-00481-

CR (Tex. App.—San Antonio Nov. 27, 2019) (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.

In a single ground, Applicant contends that he was denied his right to an appeal because trial

counsel failed to timely file a notice of appeal. Applicant has alleged facts that, if true, might entitle

him to relief. Ex parte Axel, 757 S.W.2d 369 (Tex. Crim. App. 1988); Jones v. State, 98 S.W.3d 700

(Tex. Crim. App. 2003). Accordingly, the record should be developed. The trial court is the 2

appropriate forum for findings of fact. TEX . CODE CRIM . PROC. art. 11.07, § 3(d). The trial court

shall order trial counsel1 to respond to Applicant’s claim. In developing the record, the trial court

may use any means set out in Article 11.07, § 3(d). Applicant appears to be represented by counsel.

If he is not and 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 on remand, 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 Applicant

was denied his right to an appeal because trial counsel failed to timely file a notice of appeal. The

trial court may make any other findings and conclusions that it deems appropriate in response to

Applicant’s claim.

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 29, 2020 Do not publish

1 If a defendant decides to appeal his conviction, trial counsel rather than appellate counsel has the duty to ensure that written notice of appeal is filed with the trial court. Jones, 98 S.W.3d at 703.