Duvall, Eric Matsumura

• Court: Court of Criminal Appeals of Texas
• Decided: December 21, 2022
• Docket: WR-93,712-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-93,712-01

EX PARTE ERIC MATSUMURA DUVALL, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 20160D01661-DCR1-1 IN THE CRIMINAL DISTRICT COURT NO. 1 FROM EL PASO COUNTY

Per curiam.

ORDER

Applicant was convicted of capital murder and sentenced to life without parole years’

imprisonment. The Eighth Court of Appeals affirmed his conviction. Duvall v. State, No. 08-19-

00313-CR (Tex. App. – El Paso, Sept. 29, 2021). 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 appellate counsel failed to timely inform Applicant that his

conviction had been affirmed and advise him of his right to file a pro se petition for discretionary

review. 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). 2

Accordingly, the record should be developed. The trial court is the appropriate forum for findings

of fact. TEX . CODE CRIM . PROC. art. 11.07, § 3(d). The trial court shall order appellate counsel to

respond to Applicant’s claim. In developing the record, the trial court may use any means set out

in Article 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 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 findings of fact and conclusions of law as to whether 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 determine whether Applicant

would have timely filed a petition for discretionary review but for appellate counsel’s alleged

deficient performance. 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.

Filed: December 21, 2022 Do not publish