Opinion
NO. WR-86,193-01
01-25-2017
EX PARTE TERRY O'NELL HALL, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 17419-B IN THE 104TH DISTRICT COURT FROM TAYLOR COUNTY
Per curiam. ORDER
Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the clerk of the trial court transmitted to this Court this application for a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant entered an open plea of guilty to aggravated robbery, and was sentenced to twenty-five years' imprisonment. The Eleventh Court of Appeals affirmed his conviction. Hall v. State, No. 11-10-00253-CR (Tex. App. — Eastland, March 24, 2011) (not designated for publication).
Applicant contends that he was denied his right to petition this Court for discretionary review through no fault of his own. In a letter dated March 29, 2011, Applicant's appellate counsel timely notified Applicant that his conviction had been affirmed and of his right to file a motion for rehearing and/or a PDR pro se. However on April 7, 2011, the trial court appointed a new attorney, Paul Hanneman to represent Applicant.
In a letter dated April 18, 2011, Attorney Hanneman advised Applicant that his appointment had been in error, and that the trial court was "withdrawing" the appointment. In the same letter, Attorney Hanneman again advised Applicant of his right to file a pro se motion for rehearing and/or PDR, but noting that it had already been more than 15 days since the issuance of the appellate opinion, advised Applicant that he could file a pro se motion to extend the time for filing a motion for rehearing. The letter did not include information about the deadline for filing a motion to extend the time for filing a pro se PDR.
The April 18, 2011 letter was apparently mailed to the wrong address, and was returned to Attorney Hanneman undelivered. On May 2, 2011, Attorney Hanneman re-sent the letter to Applicant, noting that his office had received a letter on April 26, 2011 (after the April 18the letter had already been sent), informing him of Applicant's new address. Applicant apparently received the letter on May 2, 2011, by which time it was too late to file his PDR. Although Applicant could have filed a motion for an extension of time for filing the PDR, there is no indication that Attorney Hanneman advised him of this fact, or of deadline for doing so.
Applicant now alleges that but for the trial court's erroneous appointment of Attorney Hanneman, he would have timely filed his PDR (presumably pro se). However, because he did not timely receive notice of the error Applicant did not have the opportunity to file a PDR, and asks this Court to grant him the opportunity to file an out-of-time PDR.
Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 668 (1984); Ex parte Wilson, 956 S.W.2d 25 (Tex. Crim. App. 1997). In these circumstances, additional facts are needed. As we held in Ex parte Rodriguez, 334 S.W.2d 294, 294 (Tex. Crim. App. 1960), the trial court is the appropriate forum for findings of fact. The trial court shall order Attorney Hanneman to respond to Applicant's claims. Specifically, Attorney Hanneman shall state whether, when he notified Applicant that his appointment had been in error, he also advised Applicant of the deadline for filing a motion for an extension of time for filing a pro se PDR. The trial court may use any means set out in TEX. CODE CRIM. PROC. art. 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 wishes to be represented by counsel, the trial court shall appoint an attorney to represent Applicant at the hearing. TEX. CODE CRIM. PROC. art. 26.04.
The trial court shall make findings of fact and conclusions of law as to whether Applicant was deprived of the opportunity to petition this Court for discretionary review because he was under the impression that he was represented by counsel during the period for filing a PDR. The trial court shall also make any other findings of fact and conclusions of law that it deems relevant and appropriate to the disposition of Applicant's claim for habeas corpus relief.
This application will be held in abeyance until the trial court has resolved the fact issues. The issues shall be resolved within 90 days of this order. A supplemental transcript containing all affidavits and interrogatories or the transcription of the court reporter's notes from any hearing or deposition, along with the trial court's supplemental findings of fact and conclusions of law, shall be forwarded to this Court within 120 days of the date of this order. Any extensions of time must be requested by the trial court and shall be obtained from this Court. Filed: January 25, 2017
Do not publish