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Ex parte Mallett

Court of Criminal Appeals of Texas
Feb 28, 2024
WR-95,098-01 (Tex. Crim. App. Feb. 28, 2024)

Opinion

WR-95,098-01

02-28-2024

EX PARTE CHRISTOPHER MALLETT, Applicant


Do not publish

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 1463856-A IN THE 228TH DISTRICT COURT FROM HARRIS COUNTY

ORDER

Per curiam.

Applicant was convicted of capital murder and sentenced to life without parole. The First Court of Appeals affirmed his conviction. Mallett v. State, No. 01-20-00026-CR (Tex. App. - Houston[1st Dist.] Aug. 3, 2021). 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 failed to timely inform him of the appellate court's decision affirming his conviction and of his right to file a pro se petition for discretionary review (PDR). Finding that Applicant alleged facts that, if true, might entitle him to relief, this Court remanded the application to the trial court, directing the court to order the Texas Department of Criminal Justice's Office of the General Counsel to obtain Applicant's mail room logs from October 2021 to April 2022, and to provide affidavits from the appropriate mail room supervisors stating whether or not Applicant received mail from his appellate attorney during the applicable period. The trial court complied with this Court's order and concluded that Applicant was not timely informed of the appellate court's decision and his right file a pro se PDR.

However, this Court should have directed the trial court to order logs and affidavits from August 2021 and September 2021. See Tex. R. App. Proc. Rules 48.4, 68.2.

Applicant has alleged facts that, if true, might entitle him to relief. Ex parte Wilson, 956 S.W.2d 25 (Tex. Crim. App. 1997); see Ex parte Crow, 180 S.W.3d 135 (Tex. Crim. App. 2005). In these circumstances, additional facts are needed. The trial court is the appropriate forum for findings of fact. Tex. Code Crim. Proc. art. 11.07, § 3(d). The trial court may use any means set out in Article 11.07, § 3(d), in that it shall order the Texas Department of Criminal Justice's Office of the General Counsel to obtain Applicant's mail room logs from August 2021 and September 2021, and to provide affidavits from the appropriate mail room supervisors stating whether or not Applicant received mail from his appellate attorney during the applicable period.

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. 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 review the information concerning Applicant's August 2021 and September 2021 mail and shall make additional supplemental findings of fact and conclusions of law as to whether appellate counsel timely informed Applicant that his conviction had been affirmed. 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.


Summaries of

Ex parte Mallett

Court of Criminal Appeals of Texas
Feb 28, 2024
WR-95,098-01 (Tex. Crim. App. Feb. 28, 2024)
Case details for

Ex parte Mallett

Case Details

Full title:EX PARTE CHRISTOPHER MALLETT, Applicant

Court:Court of Criminal Appeals of Texas

Date published: Feb 28, 2024

Citations

WR-95,098-01 (Tex. Crim. App. Feb. 28, 2024)