             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                         NO. WR-89,673-01


                        EX PARTE JOSE ROBERTO VELIZ, Applicant


                  ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                   CAUSE NO. 13285-A IN THE 63RD DISTRICT COURT
                            FROM VAL VERDE COUNTY


        Per curiam.

                                            OPINION

        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 assault with

family violence and sentenced to seven years’ imprisonment.

        Applicant contends that he was deprived his right to a meaningful and adequate appeal. We

remanded this application to the trial court for findings of fact and conclusions of law. The trial

court conducted a habeas hearing and heard testimony. The supplemental record reflects that after

Applicant’s conviction, he advised trial counsel and the trial court that he wanted to pursue a direct

appeal. Trial counsel filed notice of appeal on Applicant’s behalf, in order to preserve his right to
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appeal. However, because trial counsel had never prosecuted an appeal, he filed a motion to

withdraw from the representation and appoint a new attorney to represent Applicant on appeal. The

trial court denied the motion and ordered trial counsel to continue to represent Applicant on appeal.

       On the same day the trial court denied trial counsel’s motion to withdraw from the

representation, Applicant signed a hand-written statement indicating that he no longer wanted to

pursue the appeal, and signed a motion to dismiss the appeal. The court of appeals subsequently

dismissed Applicant’s direct appeal and issued an appellate mandate. Applicant later attempted

unsuccessfully to reinstate his appeal.

       After remand, the trial court finds that it erred in denying trial counsel’s motion to withdraw

from the representation, because trial counsel was not qualified under the Val Verde District Court

and County Court Indigent Defense Plan to represent clients on direct appeal. Nevertheless, after

the trial court denied his motion to withdraw, trial counsel agreed to represent Applicant on appeal.

Applicant would not have been denied his right to appeal entirely had he not requested or agreed to

dismiss the appeal. However, because trial counsel indicated on the record that he had never

represented a client on direct appeal and did not believe that there were meritorious grounds for

appeal in this case, Applicant’s understanding that he could only pursue a direct appeal with trial

counsel as his attorney arguably rendered his decision to dismiss the appeal less than knowingly and

voluntarily made.

       We find that Applicant is entitled to the opportunity to file an out-of-time appeal of the

judgment of conviction in Cause No. 13285-A from the 63rd District Court of Val Verde County.

Applicant is ordered returned to that time at which he may give a written notice of appeal so that he

may then, with the aid of counsel, obtain a meaningful appeal. Within ten days of the issuance of
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this opinion, the trial court shall determine whether Applicant is indigent. If Applicant is indigent

and wishes to be represented by counsel, the trial court shall immediately appoint an attorney to

represent Applicant on direct appeal. All time limits shall be calculated as if the sentence had been

imposed on the date on which the mandate of this Court issues. We hold that, should Applicant

desire to prosecute an appeal, he must take affirmative steps to file a written notice of appeal in the

trial court within 30 days after the mandate of this Court issues.

       Copies of this opinion shall be sent to the Texas Department of Criminal Justice-Correctional

Institutions Division and Pardons and Paroles Division.



Delivered: October 9, 2019
Do not publish
