             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                         NO. WR-86,461-01


                        EX PARTE CORY SHANE FIELDS, Applicant


                    ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                    CAUSE NO. 11208-D IN THE 350TH DISTRICT COURT
                                FROM TAYLOR COUNTY


        Per curiam.

                                              ORDER

        Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the

clerk of the trial court transmitted to this Court this application for a writ of habeas corpus. Ex parte

Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of aggravated sexual

assault and sentenced to thirty years’ imprisonment. The Eleventh Court of Appeals dismissed his

appeal. Fields v. State, No. 11-15-00120-CR (Tex. App.—Eastland July 23, 2015) (not designated

for publication).

        Applicant contends that trial counsel failed to timely file a notice of appeal. The trial court

found, among other things, that “filing an appeal without a legal basis for challenging the legality

of the guilty plea, confession and judgment does not bear [on] the legality of Applicant’s
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confinement.” Whether an applicant is entitled to an out-of-time appeal or petition for discretionary

review (PDR) does not depend on whether his grounds on appeal or PDR would be meritorious. See

Ex parte Crow, 180 S.W.3d 135, 138 (Tex. Crim. App. 2005) (holding that “[l]osing the right file

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

caused that deprivation depends on whether an appellant was entitled to be in the appellate process

and, absent appellate counsel’s conduct, an appellant would have timely filed a PDR).

        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 shall order trial counsel to respond to

Applicant’s claim that counsel failed to file a timely notice of appeal. 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 make further findings of fact and conclusions of law as to whether

Applicant was denied his right to a meaningful appeal because trial counsel failed to timely file a

notice of appeal. The trial court shall also make any other findings of fact and conclusions of law that

it deems relevant and appropriate to the disposition of Applicant’s claim for habeas corpus relief.

        This application will be held in abeyance until the trial court has resolved the fact issues. The

issues shall be resolved within 90 days of this order. A supplemental transcript containing all
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affidavits and interrogatories or the transcription of the court reporter’s notes from any hearing or

deposition, along with the trial court’s supplemental findings of fact and conclusions of law, shall

be forwarded to this Court within 120 days of the date of this order. Any extensions of time must

be requested by the trial court and shall be obtained from this Court.



Filed: March 22, 2017
Do not publish
