## I N T H E C O U R T O F C R I M I N A L A P P E A L S O F T E X A S NO. WR-89,673-01

EX P ARTE JOSE ROBERTO VELIZ, Applicant

ON AP P LICATION FOR A WRIT OF HABEAS CORP US CAUSE NO. 13285-A IN THE 63RD DISTRICT COURT

F ROM VAL VERDE COUN TY

Per curiam . O P I N I O N Pursuant to the provisi o n s o f Ar t icle 11.07 of the Texas Code of Criminal Procedur e, the cler k of the trial court transmitted to this Court this application for a writ of habea s corpus. Ex parte Y oung , 4 1 8 S

. W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of assault with family violence a

nd sentenc ed to seve n year s’ imprisonment. Applicant contends that he was deprive d his right to a meaning ful and adequate appea l. We

rema nded this application to the trial court for finding s of fac t and conclusions of law. The trial court conducte d a habea s hearing and heard testimony

. The supplemental rec ord ref lects that afte r Applicant’s conviction, he advised trial counsel and the trial court that he wanted to pursue a direc t appea l. Trial counse l filed notice of a ppeal on Applica

nt’s behalf

, in order to preser

ve his right to2

appea l. Howeve r, beca

use trial counsel had never prosec uted an appea l, he filed a motion to withdraw from the repr esentation and appoint a new attorney to repr esent Applicant on appea l. The trial court denied the motion and order ed trial counsel to continue to repr esent Applicant on appea l. On the s am e day the trial court denied trial counsel’s motion to withdraw from the repr esentation, Applicant signe d a hand-written statement i n d i ca ting that he no longe r wanted to pursue the appea l, and signe d a motion to dismiss the appea l. The court of appea ls subsequently dismiss ed Applicant’s direc t appea l and issued an appellate mandate. Applicant l ater attempted

unsucce ssfully

to reinstate his appe al. After rema

nd, the trial court finds that it err ed in denying trial counsel’s motion to withdraw from the repr esentation, beca use trial counsel was not qualified under the Val Ver de District Court and C ounty Court Indige nt Def ense Pl an to repr esent clients on direc t appea l. Neve rtheless, after the trial court denied his motion to withdraw, trial counsel agree d to repr esent Applicant on appea l. Applicant would not have been denied his right to appea l entirely had he not reque sted or agree d to dismiss the appea l. Howeve r, beca use trial counsel indicated on the rec ord that he had never repr esente d a client on direc t appea l and did not believe that th er e we re meritorious grounds for appeal i n t his case , Applicant’s understanding that he could only pursue a direc t appea l with trial counsel as his attorney arguably rende red his decision to dismiss the appeal less than knowing ly and voluntarily

made. W e fi nd that Applicant is entitled to the opportunity to file an out-of-time appea l of the judgme nt of conviction in Ca use No. 13285-A from the 63rd District Court of Val Ver de County

. Applicant is ordered returne d to that time at which he may g ive a written notice of appea l so that he may then, with the aid of c ounsel, obtain a meaningf ul appea l. Within ten day s of the issuanc e of3

this opinion, the trial court shall deter mine whether Applicant is indig ent. I f Applicant is indig ent and wi s h es to be repr esente d by counsel, the trial court shall immediately appoint an attorney to repr esent Applicant on direc t appea l. All time limit s shall be calc ulated as if the sentenc e had been imposed on the date on which the mandate of this Court issu es . We hold that, should Applicant desire to prosec ute an appea l, he must take aff irmative steps to file a written notice of appea l in the trial court within 30 day s after the mandate of this Court issues. Copies of this opinion shall be sent to the Te xa s D epar tment of Criminal J ustice-Corr ectional Institut ions Division and Pardons and Paroles Division.

Deliver ed: Octobe r 9, 2019 Do not publish