             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                        NO. WR-90,505-03


                       EX PARTE RAMIRO NIETO REYES, Applicant


                 ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                 CAUSE NO. 08-05094-A IN THE 252ND DISTRICT COURT
                            FROM JEFFERSON COUNTY


       Per curiam.

                                            ORDER

       Applicant was convicted of manslaughter and sentenced to 7 years’ imprisonment. The

Ninth Court of Appeals affirmed his conviction. Reyes v. State, No. 09-15-00438-CR (Tex.

App.–Beaumont, Feb. 15, 2017, no pet.). Applicant 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 appellate counsel was ineffective because counsel failed to inform

him of his right to file a pro se petition for discretionary review. Applicant has alleged facts that,

if true, might entitle him to relief. Smith v. Robbins, 528 U.S. 259 (2000); Ex parte Miller, 330

S.W.3d 610 (Tex. Crim. App. 2009). Accordingly, the record should be developed. The trial court
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is the appropriate forum for findings of fact. TEX . CODE CRIM . PROC. art. 11.07, § 3(d). The trial

court shall order appellate counsel to respond to Applicant’s claim. In developing the record, the

trial court may use any means set out in Article 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 wants to be

represented by counsel, the trial court shall appoint counsel to represent him at the hearing. See TEX .

CODE CRIM . PROC. art. 26.04. If counsel is appointed or retained, the trial court shall immediately

notify this Court of counsel’s name.

        The trial court shall make findings of fact and conclusions of law as to whether appellate

counsel’s performance was deficient and Applicant was prejudiced. Initially, the trial court shall

clarify whether Applicant had a right to appeal this conviction. The trial court may make any other

findings and conclusions that it deems appropriate in response to Applicant’s claim.

        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: March 11, 2020
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