Ex Parte Colella

977 S.W.2d 621, 1998 Tex. Crim. App. LEXIS 95, 1998 WL 404032

• Court: Court of Criminal Appeals of Texas
• Decided: July 15, 1998
• Docket: 37418-01
• Status: Published

Opinions

BAIRD, Judge,

dissenting.

This is a post-conviction application for wiit of habeas corpus filed pursuant to Tex. Code Crim. Proe. Ann. art. 11.071. Applicant is represented by counsel appointed by this Court. The instant application presents four claims for relief which allege serious constitutional violations. However, the majority dismisses the application because counsel did not file the application timely. Id., at § 5. I dissent for the reasons stated in Ex parte Smith, 977 S.W.2d 610 (Tex.Cr.App.1998), but add the following comments.

Attached as Appendix A is an “Agreed Order Extending Time to File Application for Writ of Habeas Corpus,” extending the time for filing the application until September 22, 1997.¹ This order is signed by the Presiding Judge, the Assistant District Attorney, and counsel appointed by this Court. A cursory reading of Tex.Code Crim. Proc. Ann. art. 11.071 § 4 demonstrates the instant application was due August 19, 1997. However, it appears the parties believed they could agree to give applicant additional time. Sadly, every party misconstrued the law and this Court refuses, again, to exercise our original jurisdiction. See, Tex. Const, art V, see. 5. Today, the majority summarily denies any habeas review to applicant through their actions. Accordingly, I dissent.

OVERSTREET and PRICE, JJ., join.

APPENDIX "A"

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1 . The application was ultimately filed on September 25, 1997. The State did not move to dismiss the application as untimely filed and addressed the writ on the merits as did the habeas judge in his order.