Alexander, Johnny Earl

• Court: Court of Criminal Appeals of Texas
• Decided: February 12, 2020
• Docket: WR-90,752-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-90,752-01

EX PARTE JOHNNY E. ALEXANDER, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. CR11-295A IN THE 235TH DISTRICT COURT FROM COOKE COUNTY

Per curiam.

ORDER

Applicant was convicted of intentional or knowing injury to a child causing serious bodily

injury and sentenced to life imprisonment. The Eighth Court of Appeals affirmed his conviction.

Alexander v. State, 08-14-00135-CR (Tex. App.–El Paso Jan. 30, 2017). 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 was denied his right to file a PDR because appellate counsel failed

to timely notify him that his appeal had been affirmed. The current record suggests that Applicant

made reasonable efforts to inquire about the status of his pending appeal but that appellate counsel

never responded to his inquiries. The district clerk properly forwarded this application to this Court under Texas Rule of Appellate Procedure 73.4(b)(5). Under the circumstances, however, 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.

We remand this application to the trial court to conduct an evidentiary investigation and

make findings of fact and conclusions of law. The trial court shall provide appellate counsel with

an opportunity to respond to Applicant’s allegations. If appropriate, the trial court shall order a copy

of the prison mail log of Applicant’s legal mail during the relevant time period(s) to establish

whether and when Applicant sent and received mail from his appellate attorney and the appellate

court. 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.

This application will be held in abeyance until the trial court has resolved the fact issues. 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.

Filed: February 12, 2020 Do not publish