## 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-86,461-01

EX P ARTE CORY SHANE FIELDS, Appl icant

ON AP P LICATION FOR A WRIT OF HABEAS CORP US CAUSE NO. 11208-D IN THE 350TH DIS TRICT COURT

F ROM TAYLOR 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 , 418 S.W .2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of ag g ravated sexual assault and sentenc ed to thirty y ear s’ imprisonment. The Eleventh Court of Appea ls dismiss ed his appea l. Fields v. State , No. 11-15-00120- CR (Tex. App.—Eastland J uly 23, 2015) (not desig nated for publication). Applicant contends that trial counsel failed to timely file a notice of appe al. The trial court found, among other things, that “filing an appeal without a lega l basis for challeng ing the leg ality of th e gu i l t y plea, confe ssion and judgme nt does not bear [on] the leg ality of Applicant’s2

confine ment.” Whether an applicant is entitled to an out-of-time appea l or petition for discretionar y revie w (PDR) does not depend on whether his g rounds on appea l or PDR would be meritorious. See Ex parte Crow , 180 S.W .3d 135, 138 (Tex. Crim. App. 2005) (holding that “[l] osing the rig ht file

a PDR constitutes the deprivation of that entire proce eding ” and that whether appellate counsel

cause d that deprivation depends on whether an appellant was entitled to be in the appellate proce ss and, abse nt appellate c ounsel’s conduc t, an appe llant would have timely filed a PDR). 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). 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 cour t is the appropr i at e fo ru m for finding s of fac t. The trial court shall order trial counsel to respond to Applicant’ s claim t hat counsel failed to file a timely notice of appea l. 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)

. I f t he trial court el ec t s to hold a hearing , it shall deter mine whether Applicant is indige nt. I f Applicant is i n d i gent and wishes to be repr esente d by counsel, the trial court shall appoint an attorney to repre sent him at the hea ring . T E X . C O D E C R I M . P R O C . art. 26.04. The trial co u rt s hall make further finding s of fac t and conclusions of law as to whether Applicant was denied his rig ht to a meaningf ul appea l beca

use t rial c o u n s el fa i l ed to timely file a notice of appea 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

ppropriate to the dispositi on of Applica nt’s claim for ha

beas c orpus re lief. This application will be held in abey ance until the trial court has resolved the fac t issues. The issues shall be resolved within 90 day s o f t h i s o rder

. A supplemental transcr ipt containing all3

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: Mar ch 22, 2017 Do not publish