Opinion
WR-94,877-02
02-21-2024
EX PARTE EDDIE RAY CHARLES, Applicant
Do not publish
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 16-DCR-075041B-HC1 IN THE 400TH DISTRICT COURT FROM FORT BEND COUNTY
ORDER
PER CURIAM.
Applicant was convicted of continuous sexual assault of a young child or children and sentenced to 75 years' imprisonment. The First Court of Appeals affirmed his conviction. Charles v. State, No. 01-19-00725-CR (Tex. App.-Houston[1st Dist.], Aug. 4, 2022) (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 he was denied the opportunity to petition this Court for discretionary review because appellate counsel failed to timely notify him of his right to file a pro se PDR. The record reflects that appellate counsel notified Applicant by a letter that was dated approximately fifteen days outside the time mandated in Rule 48.4. The record also reflects that this Court received Applicant's pro se PDR approximately nine days after the filing deadline provided by Rule 64.
Applicant has alleged facts that, if true, might entitle him to relief. Campbell v. State, 320 S.W.3d 338, 344 (Tex. Crim. App. 2010). 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 the Texas Department of Criminal Justice's Office of the General Counsel to file an affidavit supplemented with copies of the mail room logs from the unit in which Applicant was housed in August 2022, and September 2022, showing whether Applicant received or sent any legal mail during the applicable time period for filing a 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 Applicant received sufficient notification from appellate counsel of his right to file a pro se PDR. 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.