IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-64,858-02
EX PARTE MARIO DE LOS SANTOS, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. D-10-0567-SB-W-1 IN THE 391ST DISTRICT COURT
FROM TOM GREEN COUNTY
Per curiam.
OPINION
Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the
clerk of the trial court transmitted to this Court this application for a writ of habeas corpus. Ex parte
Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of possession of a
controlled substance and sentenced to thirty years’ imprisonment.
Applicant contends that his retained trial counsel rendered ineffective assistance because
counsel never took the requisite steps to preserve Applicant’s right to appeal. Retained counsel (two
attorneys) indicate that they told Applicant of his appellate rights when the appellate certification
was completed and signed after trial. They also told him he would have to use a different lawyer
because they did not handle appeals. Counsel mailed Applicant’s file to Applicant’s mother, per his
request. A notice of appeal, either pro se or through retained counsel, was never filed.
2
This Court has outlined the steps trial counsel must take to preserve a defendant’s appellate
rights. This Court wrote in Jones v. State, 98 S.W.3d 700, 703 (Tex. Crim. App. 2003) (internal
citations omitted) as follows:
Trial counsel’s responsibilities consist of a two-step process. First, the attorney must
ascertain whether the defendant wishes to appeal. The decision to appeal lies solely
with the defendant.... If the defendant does not wish to appeal, trial counsel’s
representation ends. If the defendant decides to appeal, the attorney must ensure that
written notice of appeal is filed with the trial court. At this point, trial counsel has
two options. He may sign the notice himself, in which case, he effectively
“volunteers” to serve as appellate counsel. Alternatively, the defendant may file the
notice pro se, which serves as “an indication that trial counsel ‘does not wish to
pursue his client's appeal.’” A “contemporaneous” presentation of the pro se notice
with a motion to withdraw by trial counsel serves as actual notice to the trial court
of the defendant's desire to appeal.
The trial court finds that “Applicant was advised of his right to appeal and the requirement
to file a Notice of Appeal”and that he “did not retain either [trial counsel] to appeal his case.” The
trial court then states, “However, it is not clear whether Applicant requested his trial attorneys to
prepare a Pro Se Notice of Appeal and assist in filing that .... [I]t appears[, rather,] that the trial
attorneys expected Applicant to hire an appellate attorney and expected that attorney to file a Notice
of Appeal.” The trial court “suggests that [this Court] permit Applicant to file an out-of-time appeal.”
The trial court is correct. Trial counsel failed to take the requisite steps to preserve
Applicant’s right to appeal by filing a motion to withdraw and a pro se notice of appeal. In the
affidavits, counsel never specifically state whether they ascertained whether Applicant wished to
appeal. If counsel did not, then they failed to comply with Jones from the start. Rather, counsel told
Applicant, “[I]f he had any desire to continue with an appeal that he would have to timely hire legal
counsel pursuant to the admonishments within the Trial Court’s Certification of Right of Appeal.”
But the certification does not state anything about filing a pro se notice of appeal to invoke the
jurisdiction of the courts of appeal.
3
Applicant is entitled to the opportunity to file an out-of-time appeal of the judgment of
conviction in Cause No. D-10-0567-SB from the 391st District Court of Tom Green County.
Applicant is ordered returned to that time at which he may give a written notice of appeal so that he
may then, with the aid of counsel, obtain a meaningful appeal. Within ten days of the issuance of
this opinion, the trial court shall determine whether Applicant is indigent. If Applicant is indigent
and wishes to be represented by counsel, the trial court shall immediately appoint an attorney to
represent Applicant on direct appeal. All time limits shall be calculated as if the sentence had been
imposed on the date on which the mandate of this Court issues. We hold that, should Applicant
desire to prosecute an appeal, he must take affirmative steps to file a written notice of appeal in the
trial court within 30 days after the mandate of this Court issues.
Copies of this opinion shall be sent to the Texas Department of Criminal Justice-Correctional
Institutions Division and Pardons and Paroles Division.
Delivered: September 16, 2015
Do not publish