Opinion
WR-95,769-02
10-09-2024
EX PARTE RAMIRO MENDIOLA GAMBOA, Applicant
Do not publish
On Application for a writ of Habeas Corpus Cause No. 2004CR5594A-W1 in the 144th District Court from Bexar County
Yeary, J., concurred.
ORDER
PER CURIAM.
Applicant pled nolo contendere to murder, and was sentenced to twenty-five years' imprisonment. Applicant did not appeal his conviction. Applicant 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 claims that his trial counsel was ineffective for failing to file a notice of appeal, although Applicant requested he do so. On August 28, 2024, the trial court signed findings of fact and conclusions of law that appear to be based solely on Applicant's claim. The trial court recommended that relief be granted.
However, a defendant must plead and prove facts which entitle him to relief and he must prove his claim by a preponderance of the evidence. Ex parte Rains, 555 S.W.2d 478, 481 (Tex. Crim. App. 1976). A petitioner's delay in seeking relief can prejudice the credibility of his claim. Ex parte Galvan, 770 S.W.2d 822 (Tex. Crim. App. 1989). Applicant has not met his burden to show that he requested counsel to file a notice of appeal in this case.
Therefore, based on this Court's independent review of the entire record, this Court finds that Applicant has not stated sufficient facts and/or presented evidence to support his claim and has failed to show that his trial counsel acted deficiently. Strickland v. Washington, 466 U.S. 668 (1984). We deny relief.