Rodriguez, Rudy Jr

• Court: Court of Criminal Appeals of Texas
• Decided: December 7, 2022
• Docket: WR-94,067-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-94,067-01

EX PARTE RUDY RODRIGUEZ, JR., Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 1069837-A IN THE 183RD DISTRICT COURT FROM HARRIS COUNTY

Per curiam. NEWELL, J. concurred.

ORDER

Applicant was convicted of murder and sentenced to life imprisonment. The First Court of

Appeals affirmed his conviction. Rodriguez v. State, No. 01-08-00584-CR (Tex. App.—Houston

[1st Dist.] Oct. 9, 2009)(not designated for publication). 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.

This application was file-stamped in Harris County on July 7, 2010. An order designating

issues was signed by the trial judge ordering an affidavit from appellate counsel on August 2, 2010.

The application was not received by this Court until August 22, 2022, over twelve years after it was

filed. There is no indication in the record of any action by the trial court after the order designating 2

issues was signed and there is no indication that counsel ever filed the affidavit as ordered. There

is also no indication that Applicant ever inquired about the status of this pending application, nor is

there any indication as to why this application was pending in Harris County for so long without any

action by the clerk or the trial court.

Applicant contends that appellate counsel failed to timely inform Applicant that his

conviction had been affirmed and advise him of his right to file a pro se petition for discretionary

review. Applicant has alleged facts that, if true, might entitle him to relief. Ex parte Wilson, 956

S.W.2d 25 (Tex. Crim. App. 1997); Ex parte Crow, 180 S.W.3d 135 (Tex. Crim. App. 2005).

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).

As a preliminary matter, the trial court shall make findings of fact as to why no action was

taken by the trial court or the clerk between the entry of the order designating issues and the

forwarding of the application to this Court. The trial court shall obtain a response from Applicant

as to whether Applicant still wants to pursue this application, and shall include that response in the

supplemental record. If the trial court is unable to obtain such a response from Applicant, the trial

court shall detail the efforts that were made to obtain a response from Applicant. The trial court shall

then return the application to this Court.

If Applicant indicates that he does want to pursue this application, the trial court shall order

appellate counsel to respond to Applicant’s claim. 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. 3

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 timely informed Applicant that his conviction had been affirmed and that he had a right to

file a pro se petition for discretionary review. The trial court shall also determine whether Applicant

would have timely filed a petition for discretionary review but for appellate counsel’s alleged

deficient performance. The trial court may make any other findings and conclusions that it deems

appropriate in response to Applicant’s claims.

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: December 07, 2022 Do not publish