Tamez, Javier

• Court: Court of Criminal Appeals of Texas
• Decided: October 14, 2015
• Docket: WR-83,312-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-83,312-01

EX PARTE JAVIER TAMEZ, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 08-CR-0741-D IN THE 105TH DISTRICT COURT FROM NUECES 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 aggravated

assault and sentenced to ten years’ imprisonment.

Applicant, through habeas counsel, raises several claims. In one, he contends that trial

counsel rendered ineffective assistance because counsel never took the requisite steps to preserve

Applicant’s right to appeal. Applicant asks for a late appeal. Trial counsel, who was retained,

provided an affidavit stating, in part, “I advised [Applicant of] his right to appeal and the 2

requirements to provide notice of his intention to appeal and the deadline for filing the same. I

advised against filing an appeal and stated my reasons. ... [Applicant] indicated he would consult

with other counsel. He was aware I was not filing an appeal on his behalf and did not request I take

any action in that regard.”

This Court, in Jones v. State, 98 S.W.3d 700, 703 (Tex. Crim. App. 2003), outlined the steps

trial counsel must take to preserve a defendant’s right to appeal, stating as follows (internal citations

omitted):

Trial counsel’s responsibilities consist of a two-step process. First, the attorney must ascertain whether the defendant wishes to appeal. The decision to appeal lies solely with the defendant.... If the defendant does not wish to appeal, trial counsel’s representation ends. If the defendant decides to appeal, the attorney must ensure that written notice of appeal is filed with the trial court. At this point, trial counsel has two options. He may sign the notice himself, in which case, he effectively “volunteers” to serve as appellate counsel. Alternatively, the defendant may file the notice pro se, which serves as “an indication that trial counsel ‘does not wish to pursue his client's appeal.’” A “contemporaneous” presentation of the pro se notice with a motion to withdraw by trial counsel serves as actual notice to the trial court of the defendant's desire to appeal.

Additional facts are needed to resolve Applicant’s claim. 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 provide additional information indicating whether

he complied with Jones v. State in advising Applicant of his appellate rights. The trial court may use

any means set out in TEX . CODE CRIM . PROC. art. 11.07, § 3(d) to obtain the information. If the trial

court elects to hold a hearing, and if Applicant is no longer represented by habeas counsel, the trial

court shall determine whether Applicant is indigent. If Applicant is indigent and wishes to be

represented by counsel at the hearing, the trial court shall appoint an attorney to represent Applicant. 3

TEX . CODE CRIM . PROC. art. 26.04.

The trial court shall make findings of fact and conclusions of law as to whether counsel’s

advice complied with Jones v. State and whether Applicant was denied his right to a meaningful

appeal. 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.

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

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 shall

be obtained from this Court.

Filed: October 14, 2015 Do not publish