Opinion
No. WR-74,867-01
Delivered: November 10, 2010. DO NOT PUBLISH.
On Application for a Writ of Habeas Corpus Cause No. CM-06-522-1 in the 278th Judicial District Court from Leon County.
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 writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of murder and sentenced to ninety-nine years' imprisonment. The Seventh Court of Appeals affirmed his conviction. Tolopka v. State, No. 07-08-00008-CR (Tex. App.-Amarillo, January 31, 2010, pet. dism'd). In this application, filed on Applicant's behalf by his appellate attorney, Applicant contends that he was denied his right to petition this Court for discretionary review due to an error in calculating the filing deadline. Appellate counsel filed a PDR on Applicant's behalf, but it was apparently mailed on the day after the deadline, and was dismissed by this Court as untimely filed. Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 608 (1984); Ex parte Lemke, 13 S.W.3d 791,795-96 (Tex. Crim. App. 2000). 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 may use any means set out in TEX. CODE CRIM. PROC. art. 11.07, § 3(d). In the appropriate case, the trial court may rely on its personal recollection. Id. 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 as to whether Applicant's appellate counsel mis-calculated the deadline for filing Applicant's PDR, and as to whether appellate counsel's error deprived Applicant of his chance to have the merits of his petition addressed by this Court. 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. If any continuances are granted, a copy of the order granting the continuance shall be sent to this Court. 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 returned to this Court within 120 days of the date of this order. Any extensions of time shall be obtained from this Court.