Opinion
NO. WR-91,588-01
09-16-2020
EX PARTE NOEL GONZALEZ, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 2012-DCR-2380 IN THE 103RD DISTRICT COURT FROM CAMERON COUNTY Per curiam. ORDER
Applicant was convicted of aggravated sexual assault of a child and sentenced to twelve 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. The Thirteenth Court of Appeals dismissed his appeal. Gonzalez v. State, No. 13-13-00327-CR (Tex. App.—Corpus Christi Feb. 5, 2015).
Applicant contends that he was denied his right to an appeal because counsel failed to answer the appellate courts' inquiries and failed to inform him that the appellate court dismissed his appeal. 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). Accordingly, the record should be developed. 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 appellate 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 the trial court elects to hold a hearing, it 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 make findings of fact and conclusions of law as to whether Applicant was denied his right to an appeal because counsel failed to respond to the appellate court and whether appellate counsel informed him that the court dismissed his app. The trial court may make any other findings and conclusions that it deems appropriate in response to Applicant's claim.
The trial court shall make findings of fact and conclusions of law within ninety days from the date of this order. The district clerk shall then 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). Any extensions of time must be requested by the trial court and obtained from this Court. Filed: September 16, 2020
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