Soto, Armando Fermin v. State

• Court: Court of Appeals of Texas
• Decided: June 15, 2015
• Docket: 05-11-01062-CR
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NOS. WR-82,563-01 & WR-82,563-02

EX PARTE ARMANDO FERMIN SOTO, Applicant

ON APPLICATIONS FOR WRITS OF HABEAS CORPUS CAUSE NOS. W10-19502-(H)(A) & W10-19503-H(A) IN CRIMINAL DISTRICT COURT NO. 1 FROM DALLAS COUNTY

Per curiam.

OPINION

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 in two causes of

intoxicated manslaughter and sentenced to imprisonment for twenty years in each cause. The Fifth

Court of Appeals affirmed his conviction. Soto v. State, Nos. 05-11-01061-CR & 05-11-01062-CR,

Tex. App.—Dallas Nov. 28, 2012) (not designated for publication).

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

assistance because counsel erroneously advised him that, upon the appellate court’s decision on her 2

Anders motion to withdraw, he would have 30 days to review the record and file a pro-se brief. We

remanded this application to the trial court for findings of fact and conclusions of law.

Appellate counsel filed an affidavit with the trial court. Based on that affidavit, the trial court

has entered findings of fact and conclusions of law that appellate counsel erroneously advised him

about the procedure of filing a pro se brief. The trial court recommends that relief be granted. In

re Schulman, 252 S.W.3d 403, 408 (Tex. Crim. App. 2008).

We find, therefore, that Applicant is entitled to the opportunity to file a pro-se, out-of-time

responsive brief alerting the court of appeals to any matters he believes might be arguable in a brief

on the merits appealing the judgments of conviction in Cause Nos. F-1019503-H & F-1019502-H

from the Criminal District Court No. 1 of Dallas County. The court of appeals shall make sure that

the Applicant is granted access to the appellate record within 15 days of the date on which this

Court’s mandate issues. Applicant’s filings shall be due within 45 days of the date on which this

Court’s mandate issues.

Delivered: June 10, 2015 Do not publish