Opinion
WR-76 356-02
09-29-2021
EX PARTE DELRIDGE JERMAINE CLARK, Applicant
Do not publish
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 2014CR1658-W1 IN THE 175TH DISTRICT COURT FROM BEXAR COUNTY
ORDER
PER CURIAM.
Applicant was convicted of two counts of Assault on a Public Servant and sentenced to twenty years' imprisonment on each count, to run concurrently. The Fourth Court of Appeals affirmed his conviction. Clark v. State, No. 04-15-00526-CR (Tex. App.-San Antonio, Nov. 2, 2016) (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 deprived of an opportunity to file a petition for discretionary review (PDR) due to the ineffective assistance of his appellate counsel. The trial court recommended that Applicant be granted an opportunity to file an out-of-time PDR. The court's recommendation is not supported by the record because it faults appellate counsel regardless of whether Applicant timely retained her. Accordingly, the trial court shall make additional fact findings. It appears that Applicant is represented by counsel. If the trial court elects to hold a hearing, it shall determine if Applicant is represented by counsel, and if not, whether Applicant is indigent. If Applicant is indigent and wishes to be represented by counsel, the trial court shall appoint an attorney to represent Applicant at the hearing. See Tex. Code Crim. Proc. art. 26.04.
The trial court shall make further findings and conclusions as to when appellate counsel was retained and whether that retainment was timely for purposes of filing a 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.