Sadler, Max Patrick AKA Sadler, Max

• Court: Court of Criminal Appeals of Texas
• Decided: May 5, 2021
• Docket: WR-92,513-02
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NOS. WR-92,513-02, WR-92,513-03 AND WR-92,513-04

EX PARTE MAX PATRICK SADLER, Applicant

ON APPLICATIONS FOR WRITS OF HABEAS CORPUS CAUSE NOS. W02-74191-M(A), W02-74192-M(A) AND W02-74194-M(A) IN THE 194TH DISTRICT COURT FROM DALLAS COUNTY

Per curiam.

ORDER

Applicant entered open pleas of guilty in these three cases to two charges of aggravated

sexual assault of a child and one charge of indecency with a child, and was sentenced to fifty years’

imprisonment, thirty-five years’ imprisonment, and ten years’ imprisonment, to run concurrently

with each other and with his twenty-year sentence for another indecency with a child charge, to

which he pleaded guilty at the same time as his pleas in these three cases. Appellate counsel filed

an Anders brief, and the Fifth Court of Appeals affirmed Applicant’s convictions. Sadler v. State,

Nos. 05-04-01814-CR, 05-04-01815-CR and 05-04-01817-CR (Tex. App. — Dallas Dec. 14, 2005)

(not designated for publication). Applicant filed these applications for writs of habeas corpus in the

county of conviction, and the district clerk forwarded them to this Court. See TEX . CODE CRIM . 2

PROC. art. 11.07.

Applicant contends that appellate counsel sent a copy of the Anders brief to the wrong

address, despite having been timely informed of Applicant’s new unit of assignment. Applicant

alleges that he did not receive a copy of the brief until too late to file a pro se response brief, and that

appellate counsel did not advise him of the process for obtaining the record and filing a pro se

response. Applicant also alleges that appellate counsel failed to 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. Anders v. California, 386

U.S. 738, 87 S. Ct. 1396 (1967); 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).

The trial court shall order appellate counsel to respond to Applicant’s claims. Specifically, appellate

counsel shall state whether he received the February 5, 2005, letter from Applicant notifying him of

his change of address, and whether appellate counsel sent copies of the Anders brief and other

communications to the correct address. Appellate counsel shall state whether he timely informed

Applicant of his right to file a pro se response brief, and of the process for obtaining a copy of the

record to review in order to prepare such a brief. Appellate counsel shall state whether he advised

Applicant of his right to file a pro se petition for review.

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 3

retained, the trial court shall immediately notify this Court of counsel’s name.

The trial court shall first ensure that the habeas record is supplemented with copies of the

appellate opinion, any communications from appellate counsel or the court of appeals notifying

Applicant of his right to review the record and file a pro se response to counsel’s Anders brief, any

communication from appellate counsel notifying Applicant of his right to file a pro se petition for

discretionary review, and any other relevant documents. The trial court shall make findings of fact

and conclusions of law as to whether appellate counsel timely advised Applicant of his right to

review the record and file a pro se response to counsel’s Anders brief, and whether he timely advised

Applicant 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: MAY 5, 2021 Do not publish