Opinion
WR-89 027-03
01-26-2022
EX PARTE JEROME WENDALL ELLIS, Applicant
Do not publish
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 170329924D3 IN THE 377TH DISTRICT COURT FROM VICTORIA COUNTY
ORDER
Per curiam.
Applicant was convicted of one count of tampering with or fabricating physical evidence and one count of murder and sentenced to twenty and ninety-nine years' imprisonment, respectively. The Thirteenth Court of Appeals affirmed his convictions. Ellis v. State, No. 13-19-00247-CR (Tex. App.-Corpus Christi-Edinburg Mar. 25, 2021) (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 appellate counsel told him that counsel would file a petition for discretionary review (PDR), that counsel did not, and that counsel did not tell Applicant that no PDR would be filed. Applicant alleges that had he known counsel was not going to file a PDR, he would have filed a pro-se PDR. Applicant has alleged facts that, if true, might entitle him to relief. See Ex parte Owens, 206 S.W.3d 670, 674 (Tex. Crim. App. 2006) (observing that when the applicant alleges that counsel's error deprived him of a proceeding, the applicant must show that due to counsel's errors, "he was deprived of that proceeding and that he would have availed himself of the proceeding had his counsel's conduct not caused a forfeiture."). 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 appellate counsel to respond to Applicant's claim. 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 appellate counsel told Applicant that counsel would pursue a petition for discretionary review and, if so, whether Applicant's reliance on counsel deprived him of the opportunity to pursue a pro-se petition for discretionary review. 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.