Opinion
WR-94,479-02
10-25-2023
EX PARTE GERARDO OGAZ, Applicant
Do not publish
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 1789 IN THE 394TH DISTRICT COURT FROM CULBERSON COUNTY
ORDER
PER CURIAM.
Applicant was convicted of intoxication manslaughter [Count I] and failure to stop and render assistance [Count II]. He was sentenced to fifty years' imprisonment for Count I and twenty-five years for Count II, to run concurrently. The Eighth Court of Appeals affirmed his convictions. Ogaz v. State, No. 08-19-00137-CR (Tex. App.-El Paso Jun. 18, 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 contended, among other things, that he lost his right to file a pro se petition for discretionary review ("PDR") because appellate counsel failed to timely inform him that his conviction had been affirmed by the court of appeals. The Court remanded this claim to the trial court to obtain a response from appellate counsel, and to make findings of fact and conclusions of law. Appellate counsel filed an affidavit essentially stating that, although he has no clear independent memory of events of this particular case, he has no reason to doubt that he followed his usual and customary practice in appellate representation to obtain and immediately transmit to his client a copy of the judgment and opinion of the court of appeals. The trial court found that appellate counsel had timely and adequately informed Applicant that his conviction had been affirmed. The trial court specifically found appellate counsel's affidavit credible and supported by corroborating evidence. Based on the current record, we disagree.
Appellate counsel provides a copy of the letter he sent Applicant on October 23, 2019; yet, he has no record of any further, more recent communication with Applicant-including the notice he claims to have sent Applicant immediately after the court of appeals issued its opinion on June 18, 2021, as customary with his usual practice. Additionally, the appellate case history does not show that appellate counsel complied with his duties under Texas Rule of Appellate Procedure 48.4 to (1) send a copy of the court of appeals's opinion and notify the defendant of his right to pursue a pro se PDR "within five days after the opinion is handed down;" (2) send that notification via certified mail, with a return receipt requested; and (3) send the court of appeals a letter certifying compliance this rule. TEX. R. APP. P. 48.4. Consequently, Applicant's mail logs are needed to accurately resolve his claim.
Applicant has alleged facts that, if true, might entitle him to relief. Ex parte Wilson, 956 S.W.2d 25 (Tex. Crim. App. 1997); 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 June 2021 to December 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. 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 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.