            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                        NO. WR-91,328-01


                     EX PARTE JEFFREY BRYAN PEYTON, Applicant


                 ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                 CAUSE NO. 56208-A*1 IN THE 30TH DISTRICT COURT
                             FROM WICHITA COUNTY


       Per curiam.

                                            ORDER

       Applicant was convicted of criminal solicitation of capital murder and sentenced to 21 years’

imprisonment. He filed this application for a writ of habeas corpus in the county of conviction, and

the district clerk forwarded it to this Court. See TEX . CODE CRIM . PROC. art. 11.07.

       Applicant contends that he was denied his right to an appeal because he told defense counsel

he wanted to appeal the denial of pretrial motions but defense counsel failed to timely file a notice

of appeal. The record before us includes the trial court’s certification that this was a plea bargain

case and Applicant had no right to appeal. However, the record also includes an admonishment

containing the statement that “if the punishment assessed by the Court does not exceed the

punishment recommended by the . . . prosecutor and agreed to by the defense and his attorney, the
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trial court must give its permission to the defendant before the defendant may appeal on any matter

in the case, except for those matters raised by written motions filed prior to trial.” A waiver of rights

to appeal and a judicial confession also contain language to the effect that Applicant’s waiver of his

right to appeal does not extend to written pretrial motions.

          The habeas court found that Applicant knowingly waived his appellate rights and that his

defense counsel did not represent that he would pursue an appeal of pretrial matters. Accordingly,

the court concludes that Applicant has not satisfied his burden to show that he is entitled to an out-

of-time appeal. We believe that the trial court should make further findings of fact and conclusions

of law.

          Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington,

466 U.S. 668 (1984); Ex parte Patterson, 993 S.W.2d 114, 115 (Tex. Crim. App. 1999); Ex parte

Axel, 757 S.W.2d 369 (Tex. Crim. App. 1988). In these circumstances, additional facts are needed.

As we held in Ex parte Rodriguez, 334 S.W.2d 294, 294 (Tex. Crim. App. 1960), the trial court is

the appropriate forum for findings of fact. The trial court may order counsel to respond again to

Applicant’s ineffective assistance of counsel claim. The trial court may use any means set out in

TEX . CODE CRIM . PROC. art. 11.07, § 3(d).

          If the trial court elects to hold a hearing, it shall determine whether Applicant is indigent.

If Applicant is indigent and wishes to be represented by counsel, the trial court shall appoint an

attorney to represent him at the hearing. TEX . CODE CRIM . PROC. art. 26.04.

          The trial court shall determine whether, pursuant to the plea agreement, Applicant expressly

waived his right to appeal the denial of his written pretrial motions. Nothing in the record before

us indicates whether Applicant expressly waived his right to appeal the denial of his pretrial motions
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after he was convicted. Even though he pleaded guilty pursuant to a plea agreement on punishment,

Applicant had the right to appeal the denial of his pretrial motions after he was sentenced unless he

expressly waived this right. TEX . R. APP . P. 25.2(a)(2)(A); Marsh v. State, 444 S.W.3d 654, 660

(Tex. Crim. App. 2014). If Applicant did not expressly waive this right, the trial court shall

determine whether Applicant informed defense counsel that he wanted to appeal the denial of pretrial

motions, and, if so, whether counsel failed to timely file a notice of appeal after Applicant was

sentenced. The trial court may make any other findings and conclusions that it deems appropriate

in response to Applicant’s claim that he lost his right to appeal the denial of pretrial motions when

defense counsel failed to file a notice of appeal.

        The trial court shall make findings of fact and conclusions of law within ninety days from

the date of this order. The district clerk shall then immediately forward to this Court the trial court’s

findings and conclusions and the record developed on remand, including, among other things,

affidavits, motions, objections, proposed findings and conclusions, orders, and transcripts from

hearings and depositions. See TEX . R. APP . P. 73.4(b)(4). Any extensions of time must be requested

by the trial court and obtained from this Court.



Filed: August 19, 2020
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