Gonzales, Michael Dean

• Court: Court of Criminal Appeals of Texas
• Decided: November 10, 2010
• Docket: WR-40,541-03
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-40,541-03 EX PARTE MICHAEL DEAN GONZALES

ON NOTICE OF NO APPLICATION FOR WRIT OF HABEAS CORPUS

FILED IN TRIAL COURT CAUSE NO. D-23,730

IN THE 358^TH JUDICIAL DISTRICT COURT

ECTOR COUNTY

Per Curiam.

O R D E R

This matter is before us because no application for writ of habeas corpus has been filed pursuant to the provisions of Texas Code of Criminal Procedure Article 11.071. ⁽¹⁾

On May 7, 2009, a jury answered punishment questions in such a way that the trial court sentenced applicant to death. On May 8, 2009, the trial court determined that applicant was indigent and asked whether he desired the appointment of counsel for the purpose of filing an application for writ of habeas corpus. Applicant emphatically stated that he wanted no appeals filed on his behalf and no attorneys appointed. For the purpose of Article 11.071, the court found that applicant was proceeding pro se on habeas. See Ex parte Reynoso, 257 S.W.3d 715, 720 and n.2 (Tex. Crim. App. 2008).

Had applicant chosen to file an Article 11.071 writ application, he should have filed it in the convicting court on or before October 4, 2010. On October 15, 2010, this Court received notice that no writ application had been filed. Because of applicant's expressed desire to waive habeas, the lack of any vacillation of that waiver appearing in the record, and applicant's failure to timely file an application, we hold that applicant has waived his right to the review of an initial Article 11.071 habeas application. Any writ application filed hereafter by applicant or on applicant's behalf will be labeled a subsequent application and reviewed under Article 11.071 § 5.

IT IS SO ORDERED THIS THE 10^th DAY OF NOVEMBER, 2010.

Do Not Publish

1. Unless otherwise indicated all references to Articles refer to the Code of Criminal Procedure.