McNair, Thomas

• Court: Court of Criminal Appeals of Texas
• Decided: December 5, 2018
• Docket: WR-89,197-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-89,197-01

EX PARTE THOMAS MCNAIR, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 20140D04769-34-1 IN THE 34TH DISTRICT COURT FROM EL PASO COUNTY

Per curiam.

ORDER

Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the

clerk of the trial court transmitted to this Court this application for a writ of habeas corpus. Ex parte

Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of murder and

tampering with evidence and sentenced to imprisonment. The Eighth Court of Appeals affirmed his

convictions. McNair v. State, No. 08-16-00033-CR (Tex. App.—El Paso del. May 24, 2018).

Applicant claims he did not receive timely notice of the appellate court’s decision affirming

his convictions and that he was denied his right to file a pro se petition for discretionary review

(PDR) through no fault of his own. 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

Applicant has alleged facts that, if true, might entitle him to relief. In these circumstances,

additional facts are needed. Pursuant to Ex parte Rodriguez, 334 S.W.2d 294, 294 (Tex. Crim. App.

1960), the trial court is the appropriate forum for findings of fact. The trial court shall order

appellate counsel to respond to Applicant’s claim. The trial court may use any means set out in TEX .

CODE CRIM . PROC. art. 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 wishes to be represented by counsel, the trial court shall appoint an

attorney to represent Applicant at the hearing. TEX . CODE CRIM . PROC. art. 26.04.

The trial court shall make findings of fact and conclusions of law as to whether Applicant

was denied his right to file a pro se PDR through no fault of his own. The trial court shall also make

any other findings of fact and conclusions of law that it deems relevant and appropriate to the

disposition of Applicant’s claim for habeas corpus relief.

This application will be held in abeyance until the trial court has resolved the fact issues. The

issues shall be resolved within 90 days of this order. A supplemental transcript containing all

affidavits and interrogatories or the transcription of the court reporter’s notes from any hearing or

deposition, along with the trial court’s supplemental findings of fact and conclusions of law, shall

be forwarded to this Court within 120 days of the date of this order. Any extensions of time must

be requested by the trial court and shall be obtained from this Court.

Filed: December 5, 2018 Do not publish