Palacios, Michael James

• Court: Court of Criminal Appeals of Texas
• Decided: January 9, 2019
• Docket: WR-89,277-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-89,277-01

EX PARTE MICHAEL JAMES PALACIOS, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 2013CR9739-W1 IN THE 186TH DISTRICT COURT FROM BEXAR 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 burglary of a

habitation and sentenced to thirty-three years’ imprisonment.

Applicant contends, among other things, that his counsel rendered ineffective assistance

because counsel failed to fully inform him of his appellate rights and secure his right to appeal after

he informed counsel he wished to appeal. Trial counsel submitted an affidavit to respond to

Applicant’s claims, but it is silent as to whether Applicant informed him of his desire to appeal. The

affidavit is also silent as to whether counsel fully informed Applicant of his appellate rights. 2

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 counsel to respond to

Applicant’s claim of ineffective assistance of counsel. 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.

“...[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 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.” Ex parte Axel, 757

S.W.2d 369, 374 (Tex. Crim. App. 1988).

The trial court shall make: (1) findings of fact and conclusions of law as to whether counsel

fully informed Applicant of his right to appeal; (2) findings as to whether Applicant informed

counsel he wished to appeal and; (3) 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 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: January 9, 2019 Do not publish