Ex Parte Richard Anthony Baldez, 2014 Tex. App. LEXIS 5115

This is a Fourth Court of Appeals proceeding from Bexar County, Texas, Ex Parte Richard Baldez.
Baldez was convicted of misdemeanor driving while intoxicated; punishment included 180 days in jail, probation for eight months, and a $500 fine.
A panel of this court affirmed the judgment; no discretionary review petition was filed in the Court of Criminal Appeals.
Baldez filed pro se post-conviction habeas corpus on June 20, 2013 seeking vacation of conviction and leave to file an out-of-time petition for discretionary review.
The trial court denied the habeas petition on June 25, 2013, stating Baldez was manifestly entitled to no relief but did not explicitly deny relief as frivolous in the order.
On appeal, the court concluded the trial court erred in determining the petition frivolous based on the face of the petition and the affidavits, and remanded for findings of fact and law on the merits of ineffective assistance of counsel.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Was the habeas denial proper given ineffective assistance claim?	Baldez argues appellate counsel failed to inform him of right to pro se discretionary review.	State contends the court may treat the petition as frivolous on face of application.	Remand for findings of fact and law; not frivolous on face.
Did lack of verification affect jurisdiction or review?	Affidavits show ineffective assistance; petition verified deficiently.	Verification requirement does not bar consideration; court may review despite missing verification.	Jurisdiction not barred; court may review the petition.
Whether the trial court erred by not providing findings of fact and conclusions of law when denying as frivolous?	The face of the petition shows colorable claims; requirement for findings applies.	Frivolous determination can be made without findings if facially frivolous.	Error to deny without findings; remand for findings of fact and law on merits.

Ex parte Wheeler, 203 S.W.3d 317 (Tex. Crim. App. 2006) (standard for reviewing habeas denial; deference to trial court on factual issues)
Kniatt v. State, 206 S.W.3d 657 (Tex. Crim. App. 2006) (mixed questions of law and fact; de novo review where no credibility concerns)
Ex parte Peterson, 117 S.W.3d 804 (Tex. Crim. App. 2003) (de novo review for mixed questions of law and fact)
Ex parte Crow, 180 S.W.3d 135 (Tex. Crim. App. 2005) (duty to inform appellate defendant of discretionary review rights; prejudice show)
Ex parte Wilson, 956 S.W.2d 25 (Tex. Crim. App. 1997) (informing about discretionary review rights; no right to review, but right to seek review)
Ex parte Owens, 206 S.W.3d 670 (Tex. Crim. App. 2006) (ineffective assistance by appellate counsel when failing to advise on discretionary review)
Ex parte Golden, 991 S.W.2d 859 (Tex. Crim. App. 1999) (pleading requirements; verification not jurisdictional bar)
Ex parte Roberts, 409 S.W.3d 759 (Tex. App.—San Antonio 2013) (de novo review of mixed questions; no deference for purely legal conclusions)