Opinion
WR-94,714-01
06-14-2023
EX PARTE DEREK STEVE BANKS, Applicant
Do not publish
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 18-2491-K26A IN THE 26TH DISTRICT COURT FROM WILLIAMSON COUNTY
ORDER
Per curiam.
Applicant was convicted of aggravated sexual assault of a child and sentenced to 70 years' imprisonment. He filed this application for a writ of habeas corpus in the county of conviction, and the district clerk forwarded it to this Court. See Tex. Code Crim. Proc. art. 11.07.
Applicant contends that he was denied his right to an appeal because counsel failed to timely file a notice of appeal. The trial court agrees and recommends granting an out-of-time appeal. However, Applicant does not assert in his Article 11.07 application that he told counsel he wanted to appeal. Additionally, the record reflects that counsel has not had an opportunity to respond to Applicant's allegation.
Applicant has alleged facts that, if true, might entitle him to relief. Ex parte Axel, 757 S.W.2d 369 (Tex. Crim. App. 1988); Jones v. State, 98 S.W.3d 700 (Tex. Crim. App. 2003). In these circumstances, additional facts are needed. The trial court is the appropriate forum for findings of fact. Tex. Code Crim. Proc. art. 11.07, § 3(d). The trial court shall order trial counsel to respond to Applicant's claim. In developing the record, the trial court may use any means set out in Article 11.07, § 3(d).
If a defendant decides to appeal his conviction, trial counsel rather than appellate counsel has the duty to ensure that written notice of appeal is filed with the trial court. Jones, 98 S.W.3d at 703.
It appears that Applicant is represented by counsel. If Applicant is not represented by counsel and the trial court elects to hold a hearing, then the trial court shall determine whether Applicant is indigent. If Applicant is indigent and wants to be represented by counsel, the trial court shall appoint counsel to represent him at the hearing. See Tex. Code Crim. Proc. art. 26.04. If counsel is appointed or retained, the trial court shall immediately notify this Court of counsel's name.
The trial court shall determine whether trial counsel's response is credible and whether Applicant informed trial counsel that he wanted to appeal. The trial court shall make supplemental findings of fact and conclusions of law as to whether Applicant was denied his right to an appeal because trial counsel failed to timely file a notice of appeal. The trial court may make any other findings and conclusions that it deems appropriate in response to Applicant's allegation that counsel failed to timely file a notice of appeal.
The trial court shall make supplemental findings of fact and conclusions of law within ninety days from the date of this order. The district clerk shall immediately forward to this Court the trial court's findings and conclusions and the record developed on remand, including, among other things, affidavits, motions, objections, proposed findings and conclusions, orders, and transcripts from hearings and depositions. See Tex. R. App. P. 73.4(b)(4). The district clerk shall also immediately forward Applicant's Jan. 27, 2023, letter to the trial court and Applicant's sworn affidavit that was identified in habeas counsel's Feb. 13, 2023, letter to the trial court. Any extensions of time must be requested by the trial court and obtained from this Court.