Rubio, John Allen

• Court: Court of Appeals of Texas
• Decided: December 16, 2015
• Docket: WR-65,784-02
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-65,784-02

EX PARTE JOHN ALLEN RUBIO

ON APPLICATION FOR POST-CONVICTION WRIT OF HABEAS CORPUS IN CAUSE NO. 03-CR-457-B IN THE 138 TH JUDICIAL DISTRICT COURT CAMERON COUNTY

Per curiam.

ORDER

In August 2010, the trial court appointed David A. Schulman to represent applicant

in a post-conviction writ of habeas corpus under Article 11.071.1 Pursuant to Article

11.071, § 4(a), applicant’s application for writ of habeas corpus was originally due in the

convicting court on or before December 27, 2011. However, because of difficulties

1 Unless otherwise indicated all references to Articles refer to the Code of Criminal Procedure. Rubio - 2

obtaining timely rulings on motions presented to the trial court, counsel failed to timely

file a writ application on applicant’s behalf. Instead, counsel asked this Court for more

time to file under Article 11.071, § 4A. This Court reviewed the case under Article

11.071, § 4A, found that counsel had shown good cause, allowed counsel to continue, and

reset the due date to 180 days after the date the order issued. This made the writ

application due to be filed in the trial court on or before March 25, 2013.

Because difficulties continued regarding getting pleadings before the trial judge in

a timely manner and getting rulings on those pleadings, applicant filed with this Court a

second motion for an extension under Article 11.071 § 4A. This Court determined that

applicant had again showed good cause and granted him 90 days to finish the

investigation and file an application for a writ of habeas corpus.

When applicant presented this Court with a third request for additional time under

Article 11.071 § 4A, we found that counsel’s showing, in an affidavit which we ordered

sealed, failed to show good cause for the third request. Consequently, we gave counsel

30 days from the date of the September 11, 2013 order to file an application in the trial

court on applicant’s behalf or risk a ruling of contempt. See Article 11.071, § 4A. This

made the application due in the trial court on or before October 11, 2013.

It has now been more than two years since the application should have been filed

in the trial court. Accordingly, the trial court has 90 days to resolve any issues remaining

in the case. The clerk should immediately thereafter transmit the complete writ record to Rubio - 3

this Court. Any extensions of time shall be obtained from this Court.

IT IS SO ORDERED THIS THE 16TH DAY OF DECEMBER, 2015.

Do Not Publish