Soto, Armando Fermin

• Court: Texas Supreme Court
• Decided: January 9, 2015
• Docket: WR-82,563-01
• Status: Published

Opinion

\aJIO-K503l-H (A) NOR-8a,Sk3-0^ WRIT NUMBER: \M \Q ~ 19503' W >N"^-8^,563-0/

IN THE

OF CRIMINAL APPEALS RECEIVED \U FOR THE STATE OF TEXAS COURT OF CRIMINAL APPEALS

AUSTIN,TEXAS JAM 09 2015

Abel Acosta, Clerk EX PARTE

ARMANDO FERMIN SOTO

APPLICANT

APPLICANT'S REQUEST FOR FACTS,FINDNIGS AND CONCLUSIONS OF LAW ON THE ISSUES DESIGNATED

BY THE TRIAL COURT.

TO THE HONORABLE JUSTICES OF THE COURT OF CRIMINAL APPEALS:

Applicant asks the court to order the Trial Court to provide facts findings and conclusions of law on the issues designated in its written order. Alternatively, Applicant asks this- Court

to designate the issue and order the resolution.

A. INTRODUCTION

The Applicant is Armando Fermin Soto; Respondent is the State of Texas, by and through the Dallas County District Att

orneys office.

Applicant seeks the issuance of facts, findings and conclus ions of law in the issue designated by the trial court.

EX PARTE SOTO-REQUEST PAGE,1 B. FACTS

A jury convict_ed_ Applicant- of the offense of intoxication

manslauthter and sentenced him to twenty years' confinement

in the Texas Department of Criminal Justice. His conviction

was affirmed by the court of Appeals in an unpublished opinion.

(See No.05-ll-01062-CR, Soto v. State) Applicant in three separate grounds for relief asserted

that he was deprived of the right to a meaningful appeal. Spec

ifically he claimed that his Appellate Counsel filed an Anders

brief which was accepted by the Dallas Court of Appeals. (Anders v. California, 386 U.S. 738 (1967)). When an attorney files an Anders brief the appellant is given an opportunity to file

a pro se brief. Applicant did not receive notice of the brief,

and the opportunity to file a pro se brief in a timely manner

due to Appellate counsel's error's. (Appellate counsel mailed the notice to him at a unit to which he was not assigned, and

failed to properly identify him with his correct TDCJ number). The State in their response to the application for writ

of habeas corpus stated:

In the interest of justice, the State requests that this court gather evidence by way of affidavit from Applicant's defense counsel or TDCJ mailroom records regarding Applicant's appeal. If the Court finds that Applicant was deprived of the right to file a pro se brief, the State requests that Applicant be granted a new appeal in the form of the opportunity to file an out-of-time pro se brief...

On July 7, 2014, the Trial Court signed an order designat

ing issues stating that there were controverted, previously

unresolved issues material to the legality of the Applicant's

EX PARTE SOTO-REQUEST PAGE,2 confinement exist. Specifically, "whether Applicant received

notification from the Gourt:of Appeals that his attorney filed

An Anders Brief and that the deadline for requesting the record

had been set."

Upon the designation this issue Applicant fileditwo seperate

requests for the appointment of counsel, both were unanswered.

On December 2014, Applicant received notification from the

court of Criminal Appeals that his writ had been received and

presented to the court.

C. ARGUMENT & AUTHORITIES

"[When] the convicting court decides that there controver ted, previously unresolved facts which are material to the legal

ity of the applicant's confinement, it shall enter an order within 20 day of the expiration of the time allowed for the

state to reply, designating the issues of fact to be resolved.

To resolve those issues the court may order affidavits, deposit

ions, interrogatories... and hearings.... the convicting court

may appoint an attorney or magistrate to hold a hearing and

make findings of fact... It shall be the duty of the reporter

woh is designated to transcribe a hearing held pursuant to [art icle 11.07] to prepare a transcript within 15 days of its con clusion. Tex. Code Crim. Proc. 11.07, sec. 3(d).

This applicant has never received any resolution from the

Trial court, an attorney or magistrate on the issue designated.

Applicant asserts that the court was required to notify

him of the resolution of the issue via findings of fact, and

EX PARTE SOTO-REQUEST PAGE, 3 conclusions of law. Applicant asks the court to forward to

him any resolution filed by the Trial court related to the issue

designated.

Alternatively, Applicant asks the Court to re-designate

the issue as to whether applicant was properly notified of

his opportunity to file a pro se brief on appeal.

D. PRAYER

For all of these reasons, Applicant prays the court order

the resolution of the issue.

Respectfully submitted,

Armando F. Soto •1740241-Coffield Unit 2661 F.M. 2054 Tennessee Colony, Tx 75884

EX PARTE SOTO-REQUEST PAGE,4