Ex Parte Reynoso

257 S.W.3d 715, 2008 Tex. Crim. App. LEXIS 821, 2008 WL 2596840
CourtCourt of Criminal Appeals of Texas
DecidedJuly 2, 2008
DocketAP-75963
StatusPublished
Cited by30 cases

This text of 257 S.W.3d 715 (Ex Parte Reynoso) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ex Parte Reynoso, 257 S.W.3d 715, 2008 Tex. Crim. App. LEXIS 821, 2008 WL 2596840 (Tex. 2008).

Opinions

OPINION

PER CURIAM.

This is a post conviction application for writ of habeas corpus filed pursuant to the provisions of Texas Code of Criminal Procedure article 11.071. In an order delivered on June 27, 2007, dismissing the application as untimely, we set out a detailed account of applicant’s repeated attempts to waive his appeals that were interspersed with an occasional desire to pursue those same appeals. Ex parte Reynoso, 228 S.W.3d 163 (Tex.Crim.App.2007). Given the timing and applicant’s repeated claims that he did not want to pursue his appeals, we held that, although his application was filed during an interval in which he chose to pursue his appeals, applicant could not show good cause for the untimely filing. Id, Therefore, we dismissed his application in its entirety and declined to appoint him new counsel under Article 11.071 § 4A. Id. Applicant subsequently filed a suggestion that we reconsider the case on our own initiative as allowed under Texas Rule of Appellate Procedure 79.2(d). Applicant asserted that the Court had not considered the application of Texas Rule of Appellate Procedure 4.1(a) in calculating the date on [717]*717which applicant’s habeas application had been due. We granted rehearing on our own initiative and asked for briefs on the issue. Throughout the scholarly debate that followed, the Court discovered that the issue was much more detailed and complicated than simply asking whether the calculation rule should be applied. We now file and set and issue the following opinion, concluding that there was good cause for applicant’s tardy filing, but denying relief on his writ.

A. History of the Case

On May 12, 2004, a jury convicted applicant of the offense of capital murder. The jury answered the special issues submitted pursuant to Texas Code of Criminal Procedure article 37.071, and the trial court, accordingly, set punishment at death. The trial court timely appointed both direct appeal counsel and habeas counsel. Applicant refused to sign the oaths of indigency and orders appointing counsel. Immediately thereafter, and consistently for the next several months, applicant repeatedly stated that he wanted to waive all of his appeals and have the trial court set an execution date.

In an effort to make sure that applicant was properly warned of the dangers of this path, and to supplement the record with evidence that applicant was making his choice knowingly and voluntarily, this Court abated the direct appeal and directed the trial court to address the issues on the record and to answer certain questions. Reynoso v. State, No. AP-74,952 (Tex.Crim.App. Sept.15, 2004) (not designated for publication). We specifically instructed the trial court in this order that, if applicant knowingly and voluntarily waived his right to file a habeas application, the trial court should rescind its order appointing counsel on habeas.

On November 8, 2004, the trial court held a hearing to comply with this Court’s order. During that hearing, applicant again stated that he wanted to waive his right to habeas proceedings. Consequently, the trial court withdrew its order appointing Steven “Rocket” Rosen as habeas counsel. Meanwhile, as required by statute, applicant’s direct appeal continued, and the following events transpired:

• November 18, 2004 — Counsel on direct appeal filed a brief. (When informed that the direct appeal could not be waived, applicant chose to allow counsel to proceed.)
• November 28, 2004 — Applicant wrote a letter to the trial court requesting that it set an execution date. (This was not his first such letter.)
• February 8, 2005 — Applicant sent another letter requesting an execution date.
• February 23, 2005 — The State filed its brief on direct appeal.
• March 2, 2005-Applicant wrote a letter to the trial court stating that he had changed his mind and wanted to pursue his appeals. Consequently, even though his appointment had been withdrawn, Rosen requested a 90-day extension for filing applicant’s habeas application. The trial court granted this timely made extension motion on March 29, 2005.
[718]*718• April 4, 2005 — The trial court convened a hearing at which applicant confirmed that he wanted to pursue his Article 11.071 habeas action. Thus, the trial court re-appointed Rosen to represent him.
• April 9, 2005 (Saturday)-Original due date for Article 11.071 application for writ of habeas corpus had no extension been filed.
• May 1, 2005 — Applicant wrote a letter to the trial court in which he again changed his mind and stated, “again, once and for all, ... I DO NOT want Rocket [Steven] Rosen to represent me. I wish to waive my appeals. I would like an execution date immediately.”
• May 4, 2005 — In a published order responding to the trial court’s notice of reappointment, we held that, when counsel’s initial timely appointment was withdrawn pursuant to applicant’s decision to waive his right to seek relief by writ of habeas corpus, applicant was considered to have chosen to proceed pro se for the purposes of Article 11.071, at least until the filing deadlines had passed. In re Reynoso, 161 S.W.3d 516 (Tex.Crim.App. 2005). Because applicant thereafter changed his mind about waiving his right to habeas and asked the court to appoint counsel prior to the filing deadline, and because the trial court re-appointed Ro-sen, we held that the re-appointment would be treated as a rescission of the November 2004 order allowing counsel to withdraw. Id. In that same published order, we further held that an appointment beyond the 30 days allowed by Article 11.071 § 2(c) is untimely and not allowed by the statute.
• May 19,2005 — Attorney Sidney Crowley, whom Rosen had contacted to assist in preparing the habeas application, visited applicant in prison. In the face-to-face meeting, applicant told Crowley that he did not want a writ application filed on his behalf. Upon further questioning, applicant reiterated his position.
• June 22, 2005 — Applicant wrote another letter to the trial court asking it to disregard his last request to drop his appeals.
• July 11, 2005 (Monday) — Rosen filed an Article 11.071 habeas application on applicant’s behalf.
• December 14, 2005 — This Court affirmed applicant’s conviction and sentence on direct appeal. Reynoso v. State, No. AP-74952, 2005 WL 3418293 (Tex.Crim. App. Dec.14, 2005) (not designated for publication).
• January 9, 2006 — The State filed its answer on habeas.
• October 11, 2006 — The trial court entered findings of fact and conclusions of law recommending that relief be denied on the single claim raised in applicant’s habeas application.
• October 19, 2006 — Applicant filed an application for the appointment of new ha-beas counsel in the trial court. The document appears to have been mailed on October 12, 2006, one day after the court issued its findings and conclusions regarding applicant’s habeas application.

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Cite This Page — Counsel Stack

Bluebook (online)
257 S.W.3d 715, 2008 Tex. Crim. App. LEXIS 821, 2008 WL 2596840, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ex-parte-reynoso-texcrimapp-2008.