Castillo, Juan Edward ( 2009 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. WR-70,510-01

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EX PARTE JUAN EDWARD CASTILLO

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ON NOTICE OF NO APPLICATION FOR WRIT OF HABEAS CORPUS FILED IN CAUSE NO. 2004-CR-1461A IN THE 186^TH JUDICIAL DISTRICT COURT BEXAR COUNTY

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Per Curiam.



O R D E R

This case is before us because the trial court notified this Court that no application for writ of habeas corpus has been filed pursuant to the provisions of Texas Code of Criminal Procedure Article 11.071. ⁽¹⁾

On September 9, 2005, the trial court appointed Suzanne Kramer to represent applicant in a post-conviction writ of habeas corpus under Article 11.071. On October 27, 2006, the State filed in this Court its brief on applicant's direct appeal. Pursuant to Article 11.071, § 4(a), counsel should have filed applicant's application for writ of habeas corpus in the convicting court no later than December 11, 2006. If a motion for extension was timely filed and granted, then applicant's application would have been due in the convicting court no later than March 12, 2007. Art. 11.071, § 4(b).

In August 2008, it was brought to the attention of this Court that no application had been filed on applicant's behalf. Pursuant to Article 11.071, § 4A, because it was well past the statutory due date and the district clerk had no record that an application had been filed, we ordered Kramer to file an affidavit with this Court setting out good cause for her failure to timely file the application.

In her affidavit, counsel admitted that she misunderstood the law, and that her misunderstanding caused her to file applicant's application several months late. However, she assured this Court that she did file an application on applicant's behalf on September 29, 2007. As proof of the filing, Kramer included with her affidavit an unsigned copy of the application she claimed to have filed. Also attached to the affidavit was a copy of a September 29, 2007, postage receipt and a copy of an envelope with a mail stamp of "11 OCT 2007 PM," a return address of the 186^th Judicial District Court, and the name "Juan Castillo" hand written above the return address. In her affidavit, Kramer asserted that the postage receipt showed that she mailed the Castillo writ application to the trial court in September 2007, and the envelope showed that the trial court received the application in October 2007. The problem was that the district clerk of Bexar County still showed no record that an application was filed in the Castillo case, timely or not.

Noting the conflicting information, this Court issued a second order on October 1, 2008, in which it ordered Kramer to produce a second affidavit resolving the discrepancies. In her second affidavit, Kramer reminded this Court that "[i]ncluded in my initial response was a copy of the receipt from the post office indicating the mailing on September 29, 2007 and a copy of the return envelope, indicating receipt of the Writ by the 186^th Judicial District Court." However, other than the handwritten notation of "Castillo" on both of these papers, and Kramer's sworn statement that these pertain to her mailing the Castillo application to the trial court, there is no actual proof that the Castillo writ was filed.

Although the record is still unclear regarding what happened to the application Kramer mailed to the trial court, we will accept Kramer's sworn statement that she did, in fact, deposit the application in the mail for filing with the district court. Accordingly, we will permit counsel to continue representing applicant, order counsel to re-file within ten (10) days of the date of this order the already completed application with the district clerk, and order the district clerk and the trial court to consider the application (once filed) as timely filed as of October 11, 2007. Once the application is filed, the trial court should proceed to review the merits of the allegations raised in the application. Kramer is further ordered to send to this Court within fifteen (15) days of the date of this order, a file-stamped copy of the front page of the application. Should Kramer fail to re-file the application within ten (10) days of the date of this order, the trial court is ordered to immediately notify this Court of that fact and await further orders.

IT IS SO ORDERED THIS THE 18^th DAY OF MARCH, 2009.

Do Not Publish

1. Unless otherwise indicated all references to Articles refer to the Code of Criminal Procedure.