## 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-88,553-01

EX P ARTE JORGE NAP OLES -P EREZ, Applicant

ON AP P LICATION FOR A WRIT OF HABEAS CORP US CAUSE NO. 2014CRO000874D2(A) IN THE 111T H DISTRICT COURT F ROM WEBB COUNTY

Per curiam . O R D E R 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 two counts of attempted capital murder, one count o f robber y , and three counts of ag g ravated robber y . He was sentenc ed to imprisonment for five terms of life a nd one ter m of ten year s. Applicant contends that trial counsel fail ed, among other things, to consult with him and explain the advanta g es and disadvantag es of an appea l. See E x p a r t e Axe l , 757 S.W .2d 369, 374 (Tex. Crim. App. 1 9 8 8 ) (“[T]rial counsel, reta ined or appointed, has the duty , obligation and responsibi lity to consult with and fully to advise his client conce rning meaning and eff ect of the2

judgme nt rende red by the court, his right to appea l from that judgme nt, the nece ssity of g iving notice of appea l and taking other steps to pursue an appea l, as well as expressing his profe ssional judgme nt

as to possible g rounds for appea l a nd their merit, and delineating advanta g es and disadvantag es of appea l.”). Applicant has alleg ed fac ts that, if true, might entitle him to relief

. Strickland v. W

ashington , 466 U.S. 668 (1984); Ex parte Patterson , 993 S.W .2d 114, 115 (Tex. Crim. App. 1999); Ex parte Axe l , 757 S.W .2d 369 (Tex. Crim. App. 1988). In these circ umstances, additional fac ts are neede d. As we held in Ex parte Rodriguez , 334 S.W .2d 294, 294 (Tex. Crim. App. 1960), the trial court is t h e ap p ropriate forum for finding s of fac t. The trial court shall order trial counsel to respond and explain whether he complied with Ex parte Axe l , 757 S.W .2d 369 (Tex. Crim. App. 1988). The trial 1 court may use any means set out in T E X . C O D E C R I M . P R O C . art. 11.07, § 3(d)

. I f t he trial court elects t o hold a hearing , it shall deter mine whether Applicant is indige nt. I f Applicant is indige nt and wish es t o be repr esente d by counsel, the trial court shall appoint an attorney to repre sent Applicant at the hearing. T E X . C O D E C R I M . P R O C . art. 26.04. The trial court shall make findings of fac t and co n clus ions of l aw as to whether Applicant

was denied his right to a meaning ful appea l beca use tri al co u n s el failed to comply with Ex parte Axe l

. The trial court shall also make any other finding s of fac t and conclusions of law that it deems rele vant and a

ppropriateto the dispositi on of Applica nt’s claim for ha

beas c orpus re lief. This application will be held in abeyance until the trial court has resolved the fac t issues. The issues shall be resolved within 90 day s of th i s o rd er . A supplemental transcript containing all

In its response, the State c ited Frazer v. South Carolina , 430 F.3d 696, 705 ( 4th Cir. 1 2005), as a

uthority for tria l counsel’s duties re g ardingdirec t appea l. This Court is not bound by decisions from the F ourth Circuit. Ex parte Ax el is the controlling c ase la w.3

aff idavits and int err og atories or the t ransc ription of t he court repor ter’s notes from any hearing or deposition, alongwith the trial court’ s supplemental finding s of fa ct and c onclusions of law, shall be for war ded to this Court withi n 120 day s of t he date of this order. Any extensions of ti me must be re quested by

the trial cour

t and shall be obtaine d from this Court.

Filed: J une 27, 2018 Do not publish