1 Zuliani’s appe al from the judgme nt of conviction is pending in this Court as cause number 03-00- 00538-C R. 

### TEXA S COU RT O F AP PEAL S, THIRD DISTRICT , AT AUST IN

NO. 03-00-00600-CR
Ex parte G erald Zul

iani

FROM THE

DISTRICT CO URT OF TRAV IS COUNTY, 299 TH J

UDICIAL DISTRICT NO. GV001915, HONORAB LE TO M BLACKWE LL, JUDGE PRESIDING
This is an appeal from an orde r denyin g relief on app ella

nt Ge rald Zulian

i’s ap pl ic at io n f or w rit of ha be as co rpu s. We wi ll

af fi rm t he order. OnJune 8, 2000, in Travis Count y cause number 0970188, a jury r eturned a verdict convicting Zuliani of invol untary manslaughter. Act of M ay 29 , 198 7, 70t h Le g. , R. S. , ch. 307, § 1, 1987 Tex. Gen. Laws 1698 (Tex. Penal Code Ann. § 19. 05(a)(1), since renumbered as § 19. 04(a)). On that date, counsel for the State and for Z uliani agreed that if Z uliani elected to have the cour t assess punishment rath er th an the jur y, the State would not oppose continuing him on$50, 000 bail pending appeal. With counsel’s assurance that he would remain

free on bail pending appeal, Zuliani ch ange d his pu ni sh ment el ecti on . Th e c ou

rt a ss es se d a

ten- ye ar term

of imprisonment and a $10, 000 f ine. The court set bail pending appeal at $50, 000, and Zuliani immediately posted an appeal bond . 12 The parties returned to court on August 4 for a hearing on Zuliani’s motion f or new trial. At the hea

ring, the court brought it to the attenti on of coun sel for both par ties that the relevant statute had been

amended to prohibit bail pending the appeal of any person convicted of
a f elony w hen the pu

nishmen t equals or exceeds

ten years. Tex. Code Crim. Proc. Ann. art. 44. 04(b) (West Supp. 2000). The court r evoked bail, discharged the bond, and remanded Zuliani into custody. Zuliani applied for a writ of habeas corpus alleging that he di d

not knowingly or voluntarily

change his punishment election. He asked the court to set aside the conviction (or at least the s en

tenc e) in ca us e n um ber 09 70 18 8 a

nd order h is rel ea se on ba il pend in g retri al

or, alternatively, to order his release on bail pending the appeal from the judgment of conviction. The writ issued and, after a hear ing, relief was denied.

Zuliani argues that h

is waiver of

the right to have the jur y assess punishment was the product of ineff

ective assis

tance of c ounsel. He contends he would n

ot have a greed to waive his right to have the jur y assess punishment had he been t old by counsel that he would be ineligible for bail on appea

l should t he court ass ess the maximum t en-year term of imprisonmen t. Zuliani urges that he

is entitl ed to a ne

w trial on the que stion of pu nishmen t. See Sterr

y v. State , 959 S. W. 2d 249, 257-58 (Tex. App.

— Dallas 1997, no pet. ) (defendant denied fair tr ial at punishment

phas e whe

re court’smisstatements of law cause d defen dant to wa ive righ t to ju ry). The writ of habeas corpus is a n extraordinary remedy that is availab le only when th ere is no other adequate remedy at law. Ex par te Alt, 958 S. W. 2d 948, 951 (Tex. App.

— Austin 1998, no pet. ). The writ is not to b e used as a s ubstitute for appeal. Id
. Zuliani’s contention that2 This is what happened in Steery , the case on which Zul iani r elies. 3 he received ineffective assistance of counsel at trial can and should be raised in his pending appeal from the judgment of

conviction. On appeal, should Zuliani pr evail on his ineffective assistanc e claim and should this Court find no basis for rever sing the judgment of conviction in its entirety,
we ma y t hen o rde r a punishment

phase retrial. 2 Meanwhile , article 44. 04(b) clearly prohibits bail pending the appea

l. The district cour t’s order denying relief is affir med.

Marilyn Aboussie, Chief Justice B efore Chief Just

ice Abou ssie, Justic es B
. A. Smith a nd Dally * Affirm ed F iled: October 19, 2000 Do N ot Pu blish

* B ef ore Carl E
. F
. Dally, Judge (r etired), Court of Cr iminal App eals, sitting by assig nment. See Tex. Gov’t

Code A nn. § 74. 003(b ) (West 1998 ).