Falk, John Ray Jr.

• Court: Court of Criminal Appeals of Texas
• Decided: April 28, 2021
• Docket: WR-18,081-04
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

NO. WR-18,081-04

EX PARTE JOHN RAY FALK, JR., Applicant

ON APPLICATION FOR WRIT OF HABEAS CORPUS IN CAUSE NO. 27347 IN THE 278TH JUDICIAL DISTRICT COURT WALKER COUNTY

Per curiam.

ORDER

We have before us Applicant’s pro se request to withdraw his Article 11.071

application for a writ of habeas corpus, the State’s motion to remand this request to the

trial court for a hearing, and the Office of Capital and Forensic Writ’s (OCFW’s) motion

for us to remand for a hearing governed by specific procedures.1 Applicant’s habeas

application is currently pending in the trial court.

1 Unless otherwise indicated, all references to Articles refer to the Code of Criminal Procedure. Falk - 2

In March 2017, a jury convicted Applicant of a 2007 capital murder and the trial

court sentenced him to death.2 Although Applicant initially waived counsel to represent

him in a post-conviction writ of habeas corpus, he ultimately agreed to the appointment of

OCFW. OCFW ultimately timely filed Applicant’s writ application in the trial court on

September 3, 2020. See Article 11.071 §§ 4(a)-(b), 4A.

Applicant has now filed a pro se letter with this Court in which he requests that we

“allow him to withdraw said writ and most regretfully forego an honest post-conviction

Writ of Habeas Corpus.” In Ex parte Reynoso, we noted that, because Article 11.071

does not provide for automatic habeas review (as compared to the automatic review on

direct appeal that Article 37.071 provides), an applicant can “waive” habeas review. 257

S.W.3d at 720 n.2 (Tex. Crim. App. 2008). However, under Article 11.071 § 2(a), an

applicant “shall be represented by competent counsel [on habeas] unless the applicant has

elected to proceed pro se and the convicting trial court finds, after a hearing on the record,

that the applicant’s election is intelligent and voluntary.”

Because the trial court is better positioned to assess Applicant’s request and

determine whether his request is made intelligently and voluntarily, we grant the State’s

motion and remand this potential waiver issue to the trial court for a hearing.3 The trial

court has 60 days from the date of this order to resolve Applicant’s request. The district

2 Applicant’s direct appeal is pending in this Court. Falk v. State, No. AP-77,071. 3 At this time, we take no action on OCFW’s motion and we take no position on the issue raised in the motion. Falk - 3

clerk shall thereafter immediately transmit the record on this issue to this Court for a final

decision on the matter.

IT IS SO ORDERED THIS THE 28TH DAY OF APRIL, 2021.

Do Not Publish