Weber, Joseph

• Court: Court of Appeals of Texas
• Decided: October 22, 2015
• Docket: WR-83,925-01
• Status: Published

Opinion

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'IN THE COURT OF CRIMINAL APPEALS STATE OF TEXAS

WR - 83r925 - Ol Tr.Ct.NO.D-l-DC-l3-904090-A

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EX PARTE,

JosEPH wEBER . - RECElVED EN § CQURTOF CR[MINAL APPEALS § OCT 22 2015 j

[ wRITTEN oBJEcTIoN ] A@@M@@§§@ ©@@V§<

To the Honorable Judges of the Court:

COMES NGNJoseph Weber,Applicant/pro se.and files this written objection pursuant to Art,ll.O? §13 and would show:

Applicant has filed a writ of habeas corpus seeking an out-of-time-appeal alleging he was denied assistance.of counsel during the'time period to file his,appeal.This allegation is true and once proven to be true will entitle; applicant to an out of time appeal and effective assistance of counsel on app- eal. v l Habeas corpus applicant was entitled to an out~of-time-appeal from judgment of conviction,where appellate counsel rendered ineffective assistance by failing to file a notice of appeal or otherwise prosecute the appeal;Ex Parte Faulkner (cr.App.2006)2006 wL 2615275,Unreported. `

' sTATEMENT oF FACTS Applicant was convicted in the 33lST Judicial District Court,Travis County/ Texas.March 22,2014,after he plead not guilty and a jury sentenced him to 70 years imprisonment.He requested trial counsel to file his notice of appeal as soon as he was advised that he had a right to appeal.However,during the time period to perfect the appeal,he was not contacted~by his attorney or any other attorney in regards to perfecting his appeal;The time period to perfect his appeal has long past,therefore,applicant has filed a writ of habeas corpus seeking an out¥of-time¥appeal. The State did not respond during the 15 days required and after the expira-

tion of the time allowed for the State to respond.Trial Court did not address

(l)

his application during the 20 additional days to determine whether the application contains allegations of controverted,previously unresolved facts material to the legality of applicant's confinement.Instead applicant's appli- cation was forwarded to this court(Court of Criminal Appeals).

APPLICABLE LAW Remand was required for factual findings,in proceedings on application for writ of habeas corpus,where District Court entered no findings of fact or con- clusions of law and applicant's contention that he was denied opportunity to file an appeal,if true,might entitle him to relief.Ex Parte Mc Intyre(Cr.App.- 2006)2006 WL 832452,unreported. ' In Gibson V. Dallas County District Clerk/275 S.W.3d 491(Tex.Crim.App.2009) This Court Ruled:When a person files an application for writ of habeas corpus challenging final felony conviction with the clerk of the Court in which the conviction was obtained,the Clerk shall assign the application to that trial court and send a copy of the application via certified mail or personal ser- vice to the attorney representing the State.See Art.ll.07 §(b)The State has 15 days to respond to the allegations in the writ application ,after the expira- tion of the time allowed for the State to respond,the Trial Court is allowed an additional twenty days to determine whether the application contains alle- gations of controverted,previously unresolved facts material to the legality of applicant's confinement.Art.ll.OV§ U:).If trialcourt determines that the application for writ of habeas corpus presents such issues it"shall" enter an order within 20 days of the expiration of the time allowed for the State to reply,designating factual issues to be reslovedY.This provision is mandatory .Art.ll.07 requires Trial judge to either(l)Enter an order designating conte- sted factual issues withing35 days of the receipt of the writ application... regardless of whether the State files no response:or(2)if there is no unre- solved facts to be determined,to send the application and all associated mat-

erials to the Court of Criminal Appeals.

In applicant's case the State did not respond to applicant's allegation[he was denied assistance of counsel during the time period to perfect his appeal],r,. this is a contested factual issue to be resolved/however,the Court did not

issue an order within the 20 days of the expiration of the time allowed for

(2)

the State to respond.to the allegations in applicant's application presently ` before the court;Therefore,applicant objects to the forwarding ofihis appli- cation to this Court without District Court entering an order designating issues to be resolved.

[ REQUEST ] Considering all the above applicant requests this Court to remand applicant's v application back to the 33lST District Court and have that court designate issue to be.resolved "was applicant denied assistance of counsel during the

time period to perfect his appeal" and as required enter it's finding of facts

he l4TH day of §z§ober,2015

// Signature

and conclusions of law.,

Executed on

DECLERATTON I Joseph Weber am the applicant.and presently being incarcerated in the Alfred Hughes Unit,declare under penalty of perjury the statements and allegations

herein are true and correct.

;§jig§g;fu ly Submitted by:

%Toseph weber#01920395 Alfred Hughes Unit, Rt.2 BOX 4400 Gatesville,Texas 76597