## I N T H E C O U R T O F C R I M I N A L A P P E A L S O F T E X A S NO. WR-91,675-01

EX P ARTE TERRANCE HENRY, Appli cant
ON AP P LICATION FOR A WRIT OF HABEAS CORP US CAUSE NO. W09-59736-W(A ) IN THE 363RD DISTRICT COURT

F ROM DALLAS COUNTY
Per curiam . O R D E R Applicant was convicted o f ca p ital murder and sentenc ed to life imprisonment without parole
. The Fifth Court of Appea ls aff irmed the conviction but reve rsed and rema nded the judgme nt
as to punishment. Henry v. State, No. 05-11-00676- CR (Tex. App.—Dallas Aug
. 24, 2012, no pet.). In the second punishment proce eding , the trial court sentenc ed Applicant to life. The appellate court aff irmed the judgme nt. Henry v. State, No. 05-14-00197- CR (Tex. App.—Dallas J uly 10, 2015, pet. ref ’d). Applicant filed this application for a writ of habea s corpus in the county of conviction, and the district cler

k forwa rded it to this Court. See T E X . C O D E C R I M . P R O C . art. 11.07. Applicant contends that appellate counsel was ineffective beca use counsel incorre ctly informed him that, following the first appea l, there was no need to pursue the claims conce rning the2

conviction in a petition for discretionar y revie w (PDR) beca

use, afte r the new punishment hear ing, they could prese rve them throug h a moti o n fo r n ew t ri al and raise them in the second PDR. Additionally , counsel informed Applicant whil e t h e first appea l was pending that, “if it bec[a]me
nece ssary ,” he would file a PDR on Applicant’s behalf
. Howeve r, counsel did not file a PDR from the first appe al. On Oct. 21, 2020, we remande d this application and direc ted t he trial court to devel op the
rec ord and make finding s of fac t and conclusions of law. We rec eived a supplemental rec ord as well
as finding s of fac t and conclusions of law from the trial court. The trial court rec ommends denying relief
. Howeve r, nothing in the supplemental rec ord contr adicts Applicant’s asser tion that appellate counsel misled him by stating that they could raise the g uilt-innocence claims in a future proce eding
. In addition, nothing in the rec ord indicates that appellate counsel timely informed Applicant of his rig ht to file a pro se PDR from his f irst a ppeal, advised Applicant (at a time when Applicant could still file a pro se PDR) that appellate counsel would not be filing a PDR, or otherwise took steps to
ensure Applicant’s rig ht to prepa re and file a PDR fr om the first appea l. See Ex parte W ilson, 956 S.W .2d 25, 26 (Tex. Crim. App. 1997) (“I f appellate counsel’s action or inaction denies a defe ndant his opportunity to prepa

re and file a petition for discretionar y revie w, that defe ndant has been denied his six th amendment rig ht to eff ective assistance of counsel.” ); see also Ex parte Crow, 180 S.W .3d 135, 138 (Tex. Crim. App. 2005) (whe n a defe ndant asser ts he has been denied his rig ht to an entire judicial proce eding , he is require d to show a rea sonable probability that, absent counsel’s err ors, that pro ce ed i ng would have occur red, but he is not require d to show that the proce eding would have resulted in a favor able outcome). The trial court shall comply with this Court’s Oct. 21 order
. The3

trial court may

use any means set out in Tex. Code Crim. P roc. a rt. 11.07, § 3(d). I f the trial c ourt elec ts to hold a hearing , it shall determine whe ther Applica nt is indi g ent. I f Applica

nt is indi g ent and wishe s to be repr esente d by counsel, the tria l court shall appoint an attorney to repre sent him at the hea ring . T E X . C O D E C R I M . P R O C . art. 26.04. I f counse l is appointed or r etained, the trial court sha ll imm ediately notify this Court of counsel’s name
. The trial c ourt shall obtain an additional re sponse from a ppellate c ounsel specif

ically addre ssing the que stions of whether a ppellate c ounsel incorr ectly advised Applica

nt that he could raise the g uilt-innocence claims in a future proce eding , and whe ther c ounsel timely informed Applicant that he w ould not be filing a PDR from the first appe al and that Applica nt could file a pro se PDR. After

obtaining this re sponse, the trial c ourt shall make f indings of f

act a nd conclusions of lawas to whethe r Applica nt was denie d the opportunity to file a PDR from his first appe al. The tria l court may make a ny other finding s and conc lusions that it deems appropr iate in re sponse to Applicant’s c laims. The trial c ourt shall make f indings of f

act a nd conclusions of lawwithin ninety day s from the date of

this order. The district clerk sha ll then immediately forwa rd to this Court the trial court’s f indings a nd conclusions and the r ecor d develope d on rema nd, including, a

mong othe r things, a ffidavits, motions, objections, proposed finding s and conc lusions, orders, and tra nscripts from hea ring s and depositions. SeeT E X . R. A P P . P. 73.4(b)( 4). Any extensions of ti me must be reque sted by

the trial cour

t and obtained f

rom this Court.

Filed: APRI L14, 2021 Do not publish