IN THE
TENTH COURT OF APPEALS
No. 10-96-180-CR
ROBERT ANTHONY POPE,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 13th District Court
Navarro County, Texas
Trial Court # 25,176
O P I N I O N
Robert Anthony Pope appeals the denial of his requested postconviction habeas corpus relief. By three points of error, Pope complains the trial court erred in concluding that it did not have jurisdiction to hear his application, that Pope's counsel was not ineffective by failing to file a notice of appeal to preserve his right to a meaningful appeal, and that Pope is not entitled to the habeas corpus relief requested—an out-of-time appeal. Because we find the trial court abused its discretion, we reverse and remand to the trial court to grant the requested relief.
The State indicted Pope for possession of a controlled substance. See Tex. Health & Safety Code Ann. §§ 481.102(3)(D), 481.115(a) (Vernon 1992 & Supp. 1997). After the trial court denied his pre-trial motion to suppress the controlled substance, Pope entered a negotiated plea of no-contest. In accord with the plea bargain, the trial court sentenced him to eight years' imprisonment, which was probated, and a $500 fine. Pope then filed a "general" notice of appeal to this Court. In an unpublished opinion, we dismissed Pope's appeal because it did not comply with the requirements of Rule of Appellate Procedure 40(b)(1). Tex. R. App. P. 40(b)(1); Pope v. State, No. 10-94-295-CR (Tex. App.—Waco, delivered June 14, 1995).
Thereafter, Pope applied for a writ of habeas corpus under Article 11.07 of the Texas Code of Criminal Procedure. Tex. Code Crim. Proc. Ann. art. 11.07 (Vernon Supp. 1997). The trial court denied this application finding that the probated sentence was not a final conviction within the meaning of Article 11.07. Id. The Court of Criminal Appeals dismissed the application.
Pope then returned to the trial court and filed an application for writ of habeas corpus under Article 11.08. Tex. Code Crim. Proc. Ann. art. 11.08 (Vernon 1977). The trial court denied this application and adopted the memorandum, findings and conclusions submitted by the State, which included findings that the court lacked jurisdiction under Article 11.08 and that Pope's trial counsel was effective. The court's action on this application is now before us.
In his first point of error, Pope attacks the trial court's conclusion that it did not have jurisdiction to hear the application for postconviction habeas corpus. Article 11.07 applies only after final conviction in a felony case. Ex parte Renier, 734 S.W.2d 349, 351 (Tex. Crim. App. 1987). When community supervision has been granted and not revoked, the conviction cannot be characterized as final. Id.; Ex parte Twyman, 716 S.W.2d 951, 952 (Tex. Crim. App. 1986); Ex parte Payne, 618 S.W.2d 380, 381 (Tex. Crim. App. 1981). Because he is on community supervision, Pope's remedy is under Article 11.08. Ex parte Renier, 734 S.W.2d at 361 n.14; Ex parte Twyman, 716 S.W.2d at 952. Thus, we find that the trial court had jurisdiction to consider his application for postconviction habeas corpus relief under Article 11.08.
The State argues that the trial court did not have jurisdiction to hear the application because Article 11.08 is intended by its title to apply to situations where an accused is confined after indictment, yet prior to sentencing. We fail to understand the State's reasoning for this argument, and its brief provides little guidance. Therefore, we sustain Pope's first point.
Pope's second point alleges the trial court erred in concluding that his trial counsel was not ineffective when counsel failed to file a notice of appeal that would assure him a meaningful appeal. His third point claims the trial court erred in concluding that he was not entitled to the requested habeas relief of an out-of-time appeal. The trial court must issue the writ of habeas corpus before it can hear the merits of the application. Ex parte Brown, 925 S.W.2d 111, 112 (Tex. App.—Amarillo 1996, no pet.); Ex parte Carter, 849 S.W.2d 410, 413 (Tex. App.—San Antonio 1993, pet. ref'd). A trial court's ruling is appealable only when the trial court issues the writ, rules upon the merits of the questions presented, and denies the relief sought. Id. Although the trial court found that it lacked jurisdiction, it entered findings and conclusions addressing the merits of the application. By doing so the trial court effectively granted the application, thus invoking our jurisdiction to review the findings and conclusions. Ex parte Hargett, 819 S.W.2d 866, 868-69 (Tex. Crim. App. 1991).
We possess the ultimate power to decide matters of fact in habeas proceedings. Ex parte Brandley, 781 S.W.2d 886, 887-88 (Tex. Crim. App. 1989). However, we generally accept the trial court's findings if they are supported by the record. Id. Moreover, the trial court's ruling in a habeas corpus proceeding should not be overturned absent a clear abuse of discretion. Ramirez v. State, 916 S.W.2d 32, 33 (Tex. App.—Houston [1st Dist.] 1995, no pet.). The applicant must show his entitlement to the relief sought. Id.
When state law authorizes an appeal, a criminal defendant is entitled to the effective assistance of counsel throughout the appeals process. Evitts v. Lucey, 469 U.S. 387, 396-99 (1985); Ex parte Ridgeway, 438 S.W.2d 804, 805 (Tex. Crim. App. 1969); Shead v. State, 711 S.W.2d 345, 346-47 (Tex. App.—Dallas 1986), appeal after remand, 746 S.W.2d 19 (Tex. App.—Dallas 1988, pet. ref'd). An attorney is required to do all that is necessary to insure that a criminal defendant receives effective assistance of counsel on appeal. Shead, 711 S.W.2d at 347. We agree with Pope that his counsel's failure to file a notice of appeal that complied with Texas Rules of Appellate Procedure deprived him of his right to the effective assistance of counsel on appeal. This failure resulted in the loss of a meaningful appeal of his conviction. Pope's appropriate remedy is the granting of postconviction habeas corpus relief directing an out-of-time appeal. See Charles v. State, 809 S.W.2d 574, 576 (Tex. App.—San Antonio 1991, no pet.). We sustain Pope's second and third points.
We reverse and remand so that the trial court may render appropriate relief consistent with this opinion when our mandate issues.
REX D. DAVIS
Chief Justice
Before Chief Justice Davis,
Justice Cummings, and
Justice Vance
Reversed and remanded
Opinion delivered and filed March 19, 1997.
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