Castillo, Ismael ( 2023 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-94,429-01
EX PARTE ISMAEL CASTILLO, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 18FC-1930-H(1) IN THE 347TH DISTRICT COURT
FROM NUECES COUNTY
Per curiam.
ORDER
Applicant was convicted of one count of capital murder and one count of engaging in
organized criminal activity, and sentenced to life imprisonment without possibility of parole. The
Thirteenth Court of Appeals affirmed his conviction. Castillo v. State, No. 13-19-00567-CR (Tex.
App. — Corpus Christi – Edinburg February 25, 2021) (not designated for publication). 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 although appellate counsel advised him at some point of the
possibility of filing a pro se petition for discretionary review, appellate counsel did not timely and
properly advise him of the deadlines and procedures for doing so. Applicant has alleged facts that,
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if true, might entitle him to relief. Ex parte Wilson, 956 S.W.2d 25 (Tex. Crim. App. 1997); Ex
parte Crow, 180 S.W.3d 135 (Tex. Crim. App. 2005). Accordingly, the record should be developed.
The trial court 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. Specifically,
appellate counsel shall state whether he timely advised Applicant that his conviction had been
affirmed, sent Applicant a copy of the appellate opinion, and advised Applicant that he had the right
to file a pro se petition for discretionary review. If appellate counsel did timely provide this
information to Applicant, appellate counsel shall state why he did not file a letter with the court of
appeals certifying compliance with Rule 48.4 of the Texas Rules of Appellate Procedure. Appellate
counsel shall provide documentation of any correspondence with Applicant detailing his right to and
the deadlines and procedures for filing a pro se petition for discretionary review. 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 timely informed Applicant of his right to file a pro se petition for discretionary review, and
of the deadlines and procedures for doing so. The trial court shall also determine whether Applicant
would have timely filed a petition for discretionary review but for appellate counsel’s alleged
deficient performance. The trial court may make any other findings and conclusions that it deems
appropriate in response to Applicant’s claims.
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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: January 11, 2023
Do not publish