EX PARTE BRANDON JAVON PAYNE, Applicant (Other)

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS

NO. WR-76,539-01
EX PARTE BRANDON JAVON PAYNE, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 1238708 IN THE 230TH JUDICIAL DISTRICT COURT
FROM HARRIS COUNTY
Per curiam.

O R D E R

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 writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of aggravated robbery and sentenced to thirty years' imprisonment.

Applicant claims that his trial counsel promised he would receive probation and that trial counsel failed to pursue an appeal. Regarding the alleged promise of probation, trial counsel states in an affidavit submitted to the trial court that he made no such promise regarding probation or any other sentence. In light of counsel's averments, which the trial court finds credible, the claim lacks merit. Regarding the appeal claim, trial counsel states, "Since I did not think there was any Grounds for Appeal I have no notes in my file about the extent to which appeal was discussed. ... At no time did the Applicant tell me he wanted to appeal." The trial court recommends that this claim be denied because "Applicant did not manifest a desire to appeal his conviction, [so] counsel was not obliged to pursue an appeal or obtain his leave as counsel on appeal in the primary case."

It is true that to obtain an out-of-time appeal because of the ineffective assistance of counsel, a defendant must have manifested a desire to appeal. Ex parte Galvan, 770 S.W.2d 822, 824 (Tex. Crim. App. 1989). But this requirement is dependent upon the defendant having been informed of his appellate rights. See Ex parte Axel, 757 S.W.2d 369, 374 (Tex. Crim. App. 1988). As this Court has held, "[T]rial counsel ... has the duty, obligation and responsibility to consult with and fully to 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 professional judgment as to possible grounds for appeal and their merit, and delineating advantages and disadvantages of appeal." Id. The record provided to this Court does not contain a certification of right to appeal signed by Applicant or any other document indicating that Applicant was informed of his appellate rights. See, e.g., Tex. R. App. Proc. 25.2(a)(2).

A defendant may also knowingly and intelligently waive his right to appeal as part of a plea, even when sentencing is not agreed upon, where consideration is given by the State for that waiver. Ex parte Broadway, 301 S.W.3d 694 (Tex. Crim. App. 2009); see also Ex parte Delaney, 207 S.W.3d 794, 796-97 (Tex. Crim. App. 2006) (holding where a waiver of appeal is entered prior to adjudication and sentencing, has not been bargained for, and the precise terms of punishment are uncertain, the waiver is not made voluntarily, knowingly, and intelligently). The capped-plea agreement in this case, signed by Applicant, states, "I waive any right to appeal which I may have should the court accept the foregoing plea bargain agreement between myself and the prosecutor." But there is nothing else in the record provided to this Court regarding whether Applicant had a right to appeal and whether the appellate waiver in the capped-plea agreement was voluntarily, knowingly, and intelligently made and supported by separate consideration given by the State.

Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 668 (1984); Ex parte Lemke, 13 S.W.3d 791,795-96 (Tex. Crim. App. 2000). 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 counsel to provide an additional affidavit indicating: (1) whether he informed Applicant that he had a right to appeal; (2) whether he explained the appellate waiver in the capped-plea agreement to Applicant; and (3) whether that appellate waiver was bargained for between the parties and made in exchange for a concession by the State. In addition to obtaining this affidavit, the trial court may also use any means set out in Tex. Code Crim. Proc. art. 11.07, § 3(d) to resolve these issues. In the appropriate case, the trial court may rely on its personal recollection. Id. 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 Applicant at the hearing. Tex. Code Crim. Proc. art. 26.04.

The trial court shall make additional findings of fact regarding: (1) whether Applicant had a right to appeal; (2) whether Applicant was informed of his appellate rights; (3) whether the appellate waiver in the capped-plea agreement was voluntarily, knowingly, and intelligently made; and (4) whether that appellate waiver was bargained for between the parties and made in exchange for a concession by the State. The trial court shall also make any other findings of fact 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. If any continuances are granted, a copy of the order granting the continuance shall be sent to this Court. A supplemental transcript containing all 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 returned to this Court within 120 days of the date of this order. Any extensions of time shall be obtained from this Court.

Filed: October 19, 2011

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