Rios, Abel

• Court: Court of Criminal Appeals of Texas
• Decided: September 16, 2020
• Docket: WR-91,409-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-91,409-01

EX PARTE ABEL RIOS, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 20040D00922-210-1 IN THE 210TH DISTRICT COURT FROM EL PASO COUNTY

Per curiam.

ORDER

Applicant was convicted of injury to a child with intent to cause serious bodily injury with

a deadly weapon and sentenced to life imprisonment. The Eighth Court of Appeals affirmed his

conviction. Rios v. State, No. 08-06-00211-CR (Tex. Crim. App.—El Paso, Sept. 24, 2008).

Applicant filed this application for a writ of habeas corpus in the county of conviction, and the

district clerk forwarded it to this Court. See TEX . CODE CRIM . PROC. art. 11.07.

Over eleven years after Applicant learned that his conviction had been affirmed on direct

appeal, he contends that appellate counsel was ineffective for failing to timely inform him of his

right to file a pro se PDR. He states that this failure deprived him of the opportunity to file a PDR.

Applicant has alleged facts that, if true, might entitle him to relief. Smith v. Robbins, 528 2

U.S. 259 (2000); Ex parte Miller, 330 S.W.3d 610 (Tex. Crim. App. 2009). Further, the current

record supports a sua sponte laches inquiry. Accordingly, the record should be developed. The trial

court is the appropriate forum for findings of fact. TEX . CODE CRIM . PROC. art. 11.07, § 3(d). The

trial court shall order appellate counsel to respond to Applicant’s claim. The court shall also give

Applicant an opportunity to explain his delay. In developing the record, the trial court may use any

means set out in Article 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 wants to be represented by counsel, the

trial court shall appoint counsel to represent him at the hearing. See TEX . CODE CRIM . PROC. art.

26.04. If counsel is appointed or retained, the trial court shall immediately notify this Court of

counsel’s name.

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

counsel’s performance was deficient and Applicant was prejudiced. The court shall also make

findings and conclusions as to whether laches bars Applicant’s request for relief. The trial court may

make any other findings and conclusions that it deems appropriate in response to Applicant’s claim.

The trial court shall make findings of fact and conclusions of law within ninety days from

the date of this order. The district clerk shall then immediately forward to this Court the trial court’s

findings and conclusions and the record developed on remand, including, among other things,

affidavits, motions, objections, proposed findings and conclusions, orders, and transcripts from

hearings and depositions. See TEX . R. APP. P. 73.4(b)(4). Any extensions of time must be requested

by the trial court and obtained from this Court.

Filed: September 16, 2020 Do not publish