Ex Parte Alfredo Olvera – Sherman & Plano, TX Criminal Defense Lawyer (Part 1)

— S.W.3d —-, 2012 WL 2336240 (Tex.App.-Dallas)

NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.

Court of Appeals of Texas, Dallas.
Ex Parte Alfredo OLVERA.
No. 05-11-01349-CR.
June 20, 2012.

On Appeal from the 199th Judicial District Court, Collin County, Texas, Trial Court Cause No. 199-81492-09.

Micah Belden, for Ex Parte Alfredo Olvera.

Gregory Alan Willis, for the State of Texas.
Before Justices MORRIS, FRANCIS, and LANG-MIERS.

OPINION Opinion by Justice LANG-MIERS.

*1 Appellant Alfredo Olvera pleaded guilty to assault of a public servant. Pursuant to a plea agreement, the trial court deferred adjudicating Olvera’s guilt, placed him on community supervision for five years, and assessed a $500 fine. Two years later, Olvera filed an application for a writ of habeas corpus asserting that his guilty plea was involuntary. He also sought an out-of-time appeal. The trial judge denied habeas relief and this appeal followed. We reverse the trial court’s order denying habeas relief, vacate the underlying judgment, and remand for further proceedings.

BACKGROUND The record shows that after Olvera pleaded guilty to the assault charge and was placed on community supervision, he asked for and got written permission from his supervision officer to travel outside the United States to Mexico with family for the Christmas holidays. When he attempted to return to the United States, however, he was denied reentry and detained by U.S. Customs and Border Protection because he was “identified as an alien who is subject to Removal (Deportation) Proceedings for his/her prior criminal conviction.”

Olvera’s family hired a lawyer to file an application for a writ of habeas corpus. In the application, Olvera alleged, among other things, that his guilty plea was involuntary because his trial counsel was ineffective. The trial court conducted three separate hearings on the writ application and denied habeas relief. The court did not make oral or written findings of fact and conclusions of law.

Olvera filed a combined notice of appeal from the judgment rendered following the plea hearing and from the order denying the writ. He asks this Court to allow him to file an out-of-time direct appeal. However, appellant did not file a notice of appeal from the judgment within 30 days after the date his sentence was suspended in open court. See TEX.R.APP. P. 26.2. Consequently, we do not have jurisdiction of appellant’s direct appeal. See id. 25.2(a)(2). In addition, the trial court certified that appellant does not have a right to a direct appeal because his case involved a plea bargain, appellant pleaded guilty, and the punishment did not exceed the punishment recommended by the State and agreed to by appellant. See TEX.CODE CRIM. PROC. ANN. art. 44.02 (West 2006). We do, however, have jurisdiction to consider the appeal from the denial of the writ application.