## 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-94,067-01

EX P ARTE RUDY RODR IGU EZ, JR., Applicant

ON AP P LICATION FOR A WRIT OF HABEAS CORP US CAUSE NO. 1069837-A IN THE 183 DISTRICT COURT R D F ROM HARRIS COUNTY

Per curiam . N E W E L L , J. concurre d. O R D E R Applicant was convicted of murder and sentenc ed to life imprisonment. The First Court of Appea ls affirme d his conviction. Rodriguez v. Stat e , No. 01-08-00584- CR (Tex. App.—Houston [1 Dist.] Oct. 9, 2009)( not desig nated f or publication). Applica

nt filed this application for a writ st of habe as cor

pus in the county

of convic tion, and the di strict 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. This application was f

ile-stamped in Ha

rris County

on J uly 7, 2010. An order

desig nating issues was signe d by the trial judge order ing an aff idavit from appellate counsel on Aug ust 2, 2010. The application was not rec eived by this Court until Aug ust 22, 2022, over twelve y ear s afte r it was filed. There is no indication in the rec ord of any action by the trial court afte r the order desig nating2

issues was sig ned and the re is no indication that counsel e ver f iled the af fidavit as orde red. The re 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 Har ris County for so long without any action by the cler k or the trial c ourt. Ap p l i ca n t co n t en d s t h at ap p el l at e co u n s el failed to timely inform Applicant t h at h i s conviction had been affir med and advise him of hi s rig ht to file a pro se petition for discretionary revie w. Applicant has alleg ed facts that, i f t rue, might entitle him to relief

. Ex parte W

ilson , 956 S.W .2d 25 (Tex. Crim. App. 1997); Ex parte Crow , 180 S.W .3d 135 (Tex. Crim. App. 2005). Acc ording ly , the rec ord should be develope d. The trial court is the appropr iate forum for finding s of fa ct. T E X . C O D E C R I M . P R O C . art. 11.07, § 3(d)

. As a pre liminary

matter, the trial court shall make f indings of f

act a s to why

no action wa s taken by the trial court or the cler k betwee n the entry of t h e o rd er d es igna ting issues and the forwa rding of the application to this C ourt. The tria l 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 rec ord. I f the trial court is una ble to obta in suc h a response from Applicant, the trial court shall detail the eff

orts that wer e made to obtain a response from Applicant. The trial court shall then re turn the applica tion to thi s Court. I f Applicant indicates that he does want to pursue this application, the trial court shall order appellate counsel to respond to Applicant’s claim. I n developing the rec ord, the trial court may use any means set out in Article 11.07, § 3(d). I f the trial court elec ts to hold a hear ing, it shall deter mine whether Applicant is indige nt. I f Applicant is indige nt and wants to be repr esente d by counsel, the trial court shall appoint counsel to repr esent him at the hear ing. See T E X . C O D E C R I M . P R O C . art.3

26.04. I f counsel is appointed or reta ined, the trial court shall i m m ed i at el y notify this Court of counsel’s na

me. The trial court shall make finding s o f fa ct and conclusions of law as to whether appellate counsel timely informed Applicant that his conviction had been aff irmed and that he had a rig ht to file a pro se petition for discretionar y revie w. The trial court shall also deter mine whether Applicant would have timely filed a petition for discretionar y revie w but for ap p el l at e counsel’s alleg ed defic ient perf

ormanc e. The trial court may make any other finding s and conc lusions that it deems appropr iate in re sponse to Applicant’s c laims. The trial co u rt shall make findings of fac t and conclusions of l aw within ninety day s from the date of this order

. The district cler k shall then immediately forwa rd to this Court the trial court’s finding s and conclusions and the rec ord develope d on rema nd, including, among other things, aff idavits, motio n s, objections, proposed finding s and conclusions, order s, and transcr ipts from hear ings and depositions. See T E X . R. A P P . P. 73.4(b)( 4). Any extensions of time must be reque sted by the trial cour

t and obtained f

rom this Court.

Filed: De cembe r 07, 2022 Do not publish