IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-83,312-01
EX PARTE JAVIER TAMEZ, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 08-CR-0741-D IN THE 105TH DISTRICT COURT
FROM NUECES COUNTY
Per curiam.
ORDER
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 aggravated
assault and sentenced to ten years’ imprisonment.
Applicant, through habeas counsel, raises several claims. In one, he contends that trial
counsel rendered ineffective assistance because counsel never took the requisite steps to preserve
Applicant’s right to appeal. Applicant asks for a late appeal. Trial counsel, who was retained,
provided an affidavit stating, in part, “I advised [Applicant of] his right to appeal and the
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requirements to provide notice of his intention to appeal and the deadline for filing the same. I
advised against filing an appeal and stated my reasons. ... [Applicant] indicated he would consult
with other counsel. He was aware I was not filing an appeal on his behalf and did not request I take
any action in that regard.”
This Court, in Jones v. State, 98 S.W.3d 700, 703 (Tex. Crim. App. 2003), outlined the steps
trial counsel must take to preserve a defendant’s right to appeal, stating as follows (internal citations
omitted):
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.
Additional facts are needed to resolve Applicant’s claim. As we held in Ex parte Rodriguez,
334 S.W.2d 294, 294 (Tex. Crim. App. 1960), the trial court is the appropriate forum for findings
of fact.
The trial court shall order trial counsel to provide additional information indicating whether
he complied with Jones v. State in advising Applicant of his appellate rights. The trial court may use
any means set out in TEX . CODE CRIM . PROC. art. 11.07, § 3(d) to obtain the information. If the trial
court elects to hold a hearing, and if Applicant is no longer represented by habeas counsel, the trial
court shall determine whether Applicant is indigent. If Applicant is indigent and wishes to be
represented by counsel at the hearing, the trial court shall appoint an attorney to represent Applicant.
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TEX . CODE CRIM . PROC. art. 26.04.
The trial court shall make findings of fact and conclusions of law as to whether counsel’s
advice complied with Jones v. State and whether Applicant was denied his right to a meaningful
appeal. The trial court shall also make any other findings of fact and conclusions of law that it
deems relevant and appropriate to the disposition of Applicant’s claim.
This application will be held in abeyance until the trial court has resolved the fact issues. The
issues shall be resolved within 90 days of this order. A supplemental transcript containing all
affidavits and interrogatories or the transcription of the court reporter’s notes from any hearing or
deposition, along with the trial court’s supplemental findings of fact and conclusions of law, shall
be forwarded to this Court within 120 days of the date of this order. Any extensions of time shall
be obtained from this Court.
Filed: October 14, 2015
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