           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS
                                    NO. WR-89,807-01

                    EX PARTE BRONSON WILLIAMS, Applicant

           ON APPLICATION FOR A WRIT OF HABEAS CORPUS
         CAUSE NO. 13-17383-A IN THE CRIMINAL DISTRICT COURT
                       FROM JEFFERSON COUNTY

       Y EARY, J., filed a dissenting opinion.

                                DISSENTING OPINION

       The Court grants Applicant relief on the basis that Applicant’s counsel provided

ineffective assistance. But because the record does not yet show that counsel performed

ineffectively, I would remand this case for additional fact-finding.

       Applicant received deferred-adjudication community supervision for aggravated

robbery on May 19, 2014. In early 2018, the State moved to adjudicate. Applicant received

appointed counsel for his adjudication hearing, and the trial court adjudicated his guilt on

April 2, 2018. Applicant untimely filed a notice of appeal on May 16, 2018. T EX. R. A PP. P.
                                                                                   WILLIAMS — 2

26.2. The court of appeals dismissed the appeal, and Applicant filed an application for a writ

of habeas corpus on February 8, 2019, in which he asks to file an out-of-time appeal on the

basis that his counsel provided ineffective assistance when he failed to effectuate Applicant’s

desire to pursue an appeal. Applicant specifically faults counsel for not timely filing a notice

of appeal.1

       Applicant also alludes, albeit obliquely, to other deficient performance on his

counsel’s part. In the course of his pleading, Applicant enumerates a defense attorney’s

obligations under Ex parte Axel, 757 S.W.2d 369 (Tex. Crim. App. 1988), when advising a

client on the right to appeal a conviction or sentence. Even if Applicant does not make an

explicit claim that counsel provided ineffective assistance specifically by failing to perform

all of the Axel duties, Applicant’s enumeration of the Axel requirements—which includes a

citation to Axel—coupled with Applicant’s statement that he has a “lack of knowledge and

understanding” about the law, provides at least a reasonable inference that Applicant is

complaining about counsel’s failure to perform all of the Axel duties.

       In Axel we said that “trial counsel, retained or appointed, has the duty, obligation, and

responsibility to consult with and fully advise his client concerning meaning and effect of the

judgment rendered by the court, his right to appeal from that judgment, the necessity of

giving notice of appeal and taking other steps to pursue an appeal, as well as expressing his


       1
         While Applicant alleges that it was counsel who was at fault for the untimely filed notice of
appeal, the convicting court found—and the record supports such a finding—that it was Applicant
himself who filed a pro se notice of appeal, which was untimely.
                                                                                     WILLIAMS — 3

professional judgment as to possible grounds for appeal and their merit, and delineating

advantages and disadvantages of appeal.” Id. at 374. In an affidavit, counsel states that he

advised Applicant that he had every right to appeal his conviction and sentence, and that a

notice of appeal had to be filed within thirty days of April 2, 2018. According to counsel,

Applicant never advised him that he wanted to appeal, and counsel had no further

communication with Applicant until counsel received Applicant’s habeas application.

Counsel, however, does not state one way or the other whether he advised Applicant about

possible grounds for an appeal, whether those grounds had any merit, or whether he

delineated to Applicant the advantages and disadvantages of pursuing an appeal, as required

under Axel.

        Because the record is silent as to whether Applicant’s counsel complied with all of his

duties under Axel, I would remand this case for additional fact-finding; specifically, whether

counsel advised Applicant about possible grounds for appeal and their merit, and whether he

described the advantages and disadvantages of an appeal.2




FILED:                  June 26, 2019
PUBLISH




       2
         While the convicting court inferred from counsel’s silence on these specific Axel requirements
that counsel did not perform these duties, this Court is the ultimate fact-finder in habeas proceedings,
and we are not bound by the convicting court’s findings. Ex parte Reed, 271 S.W.3d 698, 727 (Tex.
Crim. App. 2008).
