Pomykal, Kyle ( 2020 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-91,075-01
EX PARTE KYLE POMYKAL, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 18,264A IN THE 21ST DISTRICT COURT
FROM WASHINGTON COUNTY
Per curiam.
ORDER
Applicant was convicted of driving while intoxicated and sentenced to ten years’
imprisonment. He 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 he was denied his right to an appeal because counsel failed to timely
file a notice of appeal. Applicant has alleged facts that, if true, might entitle him to relief. Ex parte
Axel, 757 S.W.2d 369 (Tex. Crim. App. 1988); Jones v. State, 98 S.W.3d 700 (Tex. Crim. App.
2003). Accordingly, the record should be developed. The trial court is the appropriate forum for
2
findings of fact. TEX . CODE CRIM . PROC. art. 11.07, § 3(d). The trial court shall order trial counsel1
to respond to Applicant’s claim. 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 Applicant
was denied his right to an appeal because trial counsel failed to timely file a notice of appeal. The
trial court may make any other findings and conclusions that it deems appropriate in response to
Applicant’s claim.
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: April 22, 2020
Do not publish
1
If a defendant decides to appeal his conviction, trial counsel rather than appellate
counsel has the duty to ensure that written notice of appeal is filed with the trial court. Jones, 98
S.W.3d at 703.