## 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
NOS. WR-90,202-01 WR-90,202-02 WR-90,202-03 WR-90,202-04 WR-90,202-06 WR-90,202-07 WR-90,202-08

EX P ARTE NIJEL JO HNSON, App licant

ON AP P LICATIONS FOR WRITS OF HABEAS CORP US CAUSE NOS. W18-21032-M(A ), W18-76024- M(A ), W15-70228- M(A ), W18-13731- M(A ),

W17-00488-M (A), W18- 21060-M( A), AN D W15-31392-M (A) IN THE 194T H DISTRICT COURT FROM D ALLAS COUNTY

Per curiam . O R D E R P u rs u an t t o the provisions of Article 11.07 of the Texas Code of Criminal Procedur e, th e cler k of t h e t ri al co u rt transmitted to this Court these applications for writs of habea s corpus. Ex parte Y oung , 418 S.W .2d 824, 826 (Tex. Crim. App. 1967). Applicant was char g ed with two statejail of fense s of theft fr om a per son and two offe nses of second- deg ree ag g ravated assault. He pled g uilty under ple a ag ree ments for de fer red a djudication probations.2

During the probati o n p er iod, Applicant was arr ested for first-deg ree ag g ravated robber y , third-deg ree evading i n a v ehicle, another first-deg ree ag g ravated robber y , and two third-degree offe nses of assault with family violence. The State moved to revoke the four defe rre d-adjudication probations and pur sued convic tions on the five new of fense s. Applicant disposed of all nine c ases

on the same day in written ag ree ments. He l at er fi led a notice of appea l reg arding one of the ag g rava ted assault convictions, but he did not file notices of appea l reg arding the other convictions. Acc ording to Appl i ca n t , he asked trial counsel to file notices of appea l, but trial counsel failed to do so. Applicant say s he contacted an appellate attorney , and thi s attorney filed not ice of appea l in one ca se but not the others. The re is no af fidavit from trial c ounsel in the habea s rec ord, and appellate counsel states that he believed he was filing notices of app ea l i n al l the case s. The habea s rec ord conta ins no findings re solving the c ontroverte d fac ts. Reg arding the old offe nses for which Applicant’s probations wer e revoke d (the -03, -06, and -08), the ag ree ments on revoc ation do not specify that Applicant was waiving appea l, and there are

no appellate cer

tifications reg ardingthe judgme nts a djudicating g uilt. Reg arding the new offe nses (the -01, -02, -04, and -07), Applicant pled g uilty under plea agr eements. The trial court followed the plea ag ree ments, so Applicant is not entitled to appeal the c onvictions without the trial court’s permission. See T E X . R. A P P . P R O C . 25.2. The a ppellate cer

tifications g ive conflicting information

as to whether Applicant had permission to appea l or waived appea l, and Applicant’s plea ag ree ments did not specify that Applicant was waiving his appellate rig hts. Reg arding the -05 assault conviction, it was disposed of as a misdemeanor, so the late appea l claim as to this conviction cannot be raised via an Article 11.07 habea s application, which only applies to final felony convictions, but must be raised via an Ar ticle 11.09 habe as applica tion, which applies to misdemeanor s.3

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 Axe l , 757 S.W .2d 369 (Tex. Crim. App. 1988); Jo n es v. State , 98 S.W .3d 700, 703 (Tex. Crim. App. 2003). I n 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 the appropr iate forum for finding s of fac t. The trial court s h all order trial counsel to respond to Applicant’s c laims of ineffe ctive assistanc e of counsel. The trial 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)

. The trial court s h al l make findings of fac t and conclusions of l aw as to whether Applicant was denied his rig ht to meaning ful appea ls throug h no fault of his own. See Ex part e Axel , supra ; Jones v. State , supra . The trial court shall also make any other finding s of fac t and conc lusions of law that it deems rele vant and appropr iate to the dispositi on of Applicant’s claims for habea s corpus relief

. These applications 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 this orde r. A supplemental transcr ipt c ontaining all aff idavits and int err og atories or the t ransc ription of t he court repor ter’s notes from any hear ing or deposition, along with 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. A ny extensions of ti me must be re quested by

the trial cour

t and shall be obtaine d from this Court.

Filed: September

11, 2019 Do not publish