Opinion
NO. WR-78,123-01
11-07-2012
EX PARTE RODOLFO ALVAREZ MEDRANO
ON APPLICATION FOR WRIT OF HABEAS CORPUS IN CAUSE
NO. CR-0942-03-F IN THE 332ND JUDICIAL DISTRICT COURT
HIDALGO COUNTY
Per Curiam .
ORDER
This matter is before us because an application for post-conviction writ of habeas corpus was untimely filed in the trial court pursuant to the provisions of Texas Code of Criminal Procedure article 11.071.
In August 2005, a jury convicted applicant of the offense of capital murder. The jury answered the special issues submitted pursuant to Texas Code of Criminal Procedure article 37.071, and the trial court, accordingly, set punishment at death. This Court affirmed applicant's conviction and sentence on direct appeal. Medrano v. State, No. AP-75,320 (Tex. Crim. App. Nov. 26, 2008)(not designated for publication).
Pursuant to Article 11.071 § 4(a), the writ application should have been filed in the trial court "not later than the 45th day after the date the state's original brief [was] filed on direct appeal[.]" The State's brief on direct appeal was filed in this Court on July 12, 2007. This made the due date for filing no later than August 27, 2007. Article 11.071 § 4(b) provided that "[t]he convicting court, before the filing date that is applicable . . . may for good cause shown . . . grant one 90-day extension that begins on the filing date applicable to the defendant[.]" (Emphasis added.) Had applicant obtained a valid extension, then his application would have been due no later than November 26, 2007. Although applicant timely filed a motion for extension, the trial court did not rule on the motion for extension until October 16, 2007, nearly three weeks after the original due date, rendering the extension invalid. See Article 11.071 § 4(b).
The due date actually fell on Sunday, August 26, 2007, making the application timely filed if filed on Monday, August 27, 2007.
The due date actually fell on Saturday, November 24, 2007, making the application timely filed if filed on Monday, November 26, 2007.
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When an application is untimely filed, Article 11.071 § 4(d) requires the convicting court to notify this Court within ten days of the untimely filing. However, that did not happen in this case. Furthermore, other events have occurred since the time of filing that have created a conflict between counsel who filed the untimely document and applicant. To remedy that conflict, the convicting court has removed the original counsel from the case and substituted in new counsel.
After reviewing the record in this case, and the trial court's hearing concerning counsel, we have determined that we need not summon counsel who filed the purported writ application before us because he cannot show good cause. Although counsel filed his initial document prior to November 26, 2007, the date an application would have been due had the extension been valid, counsel filed only a bare bones document raising 21 claims. We have held that the type of document filed is not a proper writ application. See Ex parte Medina, 361 S.W.3d 633 (Tex. Crim. App. 2011). Counsel did not support his claims with sufficient facts and law until November 2011. Assuming that these pleadings constitute a valid application, we conclude that the initial untimely filing, coupled with a four year delay in supporting the claims raised in the filing, renders any explanation regarding good cause insufficient.
Consequently, we dismiss both the application and the brief filed in support of that application. See Art. 11.071 § 4A(b). Likewise, we dismiss applicant's pro se motion to amend that application. We adopt the trial court's appointment of new counsel, and we appoint Michael C. Gross to file a new writ application on applicant's behalf. The writ application is due to be filed in the trial court on or before the 270th day after the date of this order.
IT IS SO ORDERED THIS THE 7th DAY OF NOVEMBER, 2012. Do Not Publish