Rios, Manuel Lupe Jr.

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-39,597-13

EX PARTE MANUEL LUPE RIOS, JR., Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. W90-54752-U(C) IN THE 291ST DISTRICT COURT FROM DALLAS 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 aggravated

robbery and sentenced to fifty years’ imprisonment. The Fifth Court of Appeals affirmed his

conviction. Rios v. State, No. 05-96-01074-CR (Tex. App.—Dallas 1998, pet. dism’d).

We received this application on May 7, 2014. Page six from the 11.07 form, the page for

Applicant’s first ground, was not forwarded with the record. We have no reason to doubt that when

he mailed his application to Dallas County, Applicant included page six. Indeed, the State’s 2

response and the trial court’s findings of fact and conclusions of law both state that Applicant raised

actual innocence in his first ground.

The District Clerk’s failure to forward complete records to this Court is not new. We have

even remanded habeas applications for live evidentiary hearings in response to the District Clerk’s

practices and policies.1 Yet the District Clerk, Gary Fitzsimmons, continues to forward incomplete

records. For example, we recently remanded Applicant’s -12 application, a companion case, and

ordered Fitzsimmons to file a response and explain why Applicant’s memorandum was not

forwarded with the record. Fitzsimmons responded that Applicant filed a memorandum with his

application, but the memorandum, he said, “was not labeled with the correct case number(s).” He

also said that he eventually located Applicant’s memorandum under the felony cause number, not

the writ number.

We are not persuaded by Fitzsimmons’s explanation. Applicant filed a memorandum with

the -13 application, and although he put the cause number from the judgment on the first page of his

memorandum, his memorandum was forwarded with that record. We also question why a document

titled, “Memorandum in support of application for Writ of Habeas Corpus,” with the cause number

from the underlying judgment, would not be received and filed as part of the habeas record.

Fitzsimmons shall forward page six from Applicant’s 11.07 form within fifteen days of the

date of this order. This application will be held in abeyance until the record is supplemented. No

extensions will be granted.

Filed: September 17, 2014 Do not publish

1 Ex parte Watson, No. WR-75,170-03 (Tex. Crim. App. May 22, 2013); Ex parte Subia, Nos. WR-79,511-01 & 79,511-02 (Tex. Crim. App. May 22, 2103); Ex parte Rogers, No. WR- 62,774-02 (Tex. Crim. App. May 22, 2013).