Reynolds, Jacky Clay ( 2009 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. WR-70,991-01

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EX PARTE JACKY CLAY REYNOLDS, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 0417630A IN THE 8^TH JUDICIAL DISTRICT COURT FROM HOPKINS COUNTY

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   Per curiam.

O R D E R  

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 in this case of two counts of indecency with a child, and was sentenced to ninety-nine years' imprisonment for each count. The Sixth Court of Appeals affirmed his conviction, but reversed the sentences due to error at the punishment phase of trial, and remanded to the trial court for a new punishment trial. Reynolds v. State, No. 06-05-00155-CR (Tex. App. - Texarkana, May 31, 2007, no pet). On remand, Applicant entered into a plea in exchange for fifty-year sentences for the two indecency with a child counts. He waived his right to appeal the re-sentencing as part of his plea.

Applicant contends, inter alia, that his appellate counsel rendered ineffective assistance because counsel failed to timely advise Applicant of his right to petition for discretionary review pro se when the court of appeals affirmed his conviction. This Court remanded to the trial court for an affidavit from appellate counsel, and for findings of fact regarding whether there were issues raised on Applicant's direct appeal from this conviction which pertained to the determination of guilt, as opposed to the punishment phase of his trial. This Court also ordered the trial court to make findings as to whether Applicant's appellate counsel timely informed Applicant that his conviction had been affirmed and that he had a right to file a pro se petition for discretionary review.   

Appellate counsel submitted an affidavit, in which he states that he informed Applicant that any further appeal from his conviction would have to be pro se, because he had not been appointed to represent Applicant for discretionary review. However, appellate counsel states that he discussed this matter with Applicant after Applicant had been returned to Hopkins County Jail to await his retrial on punishment. Appellate counsel indicates that this discussion took place "on or about August 30, 2007." The appellate opinion affirming Applicant's conviction but reversing his punishment was issued on May 31, 2007. Therefore, the deadline for filing a petition for discretionary review had already passed by the time counsel had this discussion with Applicant.

Appellate counsel's affidavit does not address the question of whether there were issues raised on Applicant's direct appeal pertaining to the determination of guilt, which would have been subject to further review by way of a petition for discretionary review in this Court. Nor do the trial court's findings address this issue. Therefore, a second remand is necessary for determination of the issues raised in Applicant's writ of habeas corpus. The trial court may obtain a second affidavit from appellate counsel addressing the specific issues that were argued on direct appeal. 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 as to whether there were issues raised on Applicant's direct appeal from this conviction which pertained to the determination of guilt, as opposed to the punishment phase of his trial. The trial court shall then make findings as to whether Applicant's appellate counsel timely informed Applicant that his conviction had been affirmed and that he had a right to file a pro se petition for discretionary review. 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.   

Filed: March 11, 2009

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