Sadler, Max Patrick

• Court: Court of Criminal Appeals of Texas
• Decided: April 21, 2021
• Docket: WR-92,513-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-92,513-01

EX PARTE MAX PATRICK SADLER, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. W02-74193-M(A) IN THE 194TH DISTRICT COURT FROM DALLAS COUNTY

Per curiam.

ORDER

Applicant entered an open plea of guilty to indecency with a child and was sentenced to

twenty years’ imprisonment. Appellate counsel filed an Anders brief, and the Fifth Court of Appeals

affirmed Applicant’s conviction. Sadler v. State, No. 05-04-01816-CR (Tex. App. — Dallas Dec.

14, 2005) (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.

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 2

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

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

indictment, judgment, 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 3

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: April 21, 2021 Do not publish