## 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-88,579-02

EX P ARTE JOEL MAG AÑA, Applicant

ON AP P LICATION FOR A WRIT OF HABEAS CORP US CAUSE NO. 2009CRN000331D1 IN THE 49TH DIST RICT COURT

F ROM WEBB COUNTY

Per curiam . O R D E R Pursuant to the provisions of Article 11.07 of the T ex as C o d e of Criminal Procedur e, the cler k of the trial court transmitted to this Court this application for a writ of habea s corpus. Ex parte Y oung , 418 S.W .2d 824, 826 (Tex. Crim. Ap p . 1 9 6 7). Applicant was convicted of one count of murder and sentenc ed to seventy -five y ear s imprisonment and two counts of robber y and sentenc ed to te n y ear s’ imprisonment in eac h count. The Four th Court of Appea ls r ever sed his c onviction in

one of the robber

y counts and ref

ormed the judgme nt to delete his conviction and punishment in that count. The intermediate court aff irmed the judgme nt as ref o rm ed. Magaña v. State , No. 04-10- 00120-CR (Tex. App.—San Antonio August 10, 2011) ( not desig nated f or publication). Applicant contends, among oth er t h i n gs , that counsel err ed by failing to file a petition for2

discretionar

y revie w on Applicant’s be half. Applica nt alleg es that counse l assured A pplicant that counsel would file the petition f or discretionar

y revie w which cause d Applicant to believe in g ood faith that a timely appea l would be filed. Acc ording to Applicant, counsel did not file a petition of discretionar

y revie w causing Applicant to lose the ability to f ile a petition f

or discretionar

y revie w himself or hire a dditional counsel to do so. Applicant has alleg ed fac ts that, if true, might entitle him to relief

. Strickland v. W

ashington , 466 U.S. 668 (1984); Ex parte W ilson , 956 S.W .2d 25 (Tex. Crim. Ap p . 1997). I n these circ umstances, additional fac ts a re neede d. Pursuant to Ex parte Rodriguez , 334 S.W .2d 294, 294 (Tex. Crim. App. 1960), the trial court is the appropr iate forum for finding s of fac t. The trial court shall order appellate counsel to r espond to Applicant’s claim of ineffe ctive assistance of counsel. The trial c ourt may

use any means set out in T E X . C O D E C R I M . P R O C . art. 11.07, § 3(d)

. I t appea rs that Applicant is repr esente d by counsel. The trial court shall deter mine whether Applicant is repr esente d by counsel, and if not, whether Appl i ca n t i s i ndige nt. I f Applicant is indige nt and wishes to be repr esente d by counsel, the trial court shall appoint an attorney to repr esent Applicant at the he aring . T E X . C O D E C R I M . P R O C . art. 26.04. The trial court shall make finding s of fac t an d co n clus ions of law as to whether appellate counsel assure d Applicant, or led Applicant to believe, that co u n s el would file a petition for discretionar

y revie w on Applicant’s behalf

. I f not, the trial court shall deter mine whether appellate counsel failed to timely advise Applicant of his rig ht to file a pro se PDR within the time limit ations

as set forth in TRAP 48.4. The trial court shall also make finding s as to whether Applicant’s claims3

are barr ed by the equitable doctrine of lache s. The trial court shall also make any other finding s of 1 fac t and conclusions of law that it deems rele vant and appropr iate to the dispositi on of Applicant’s claim for ha

beas c orpus re lief. This application will be held in abey ance until the trial court has resolved the fac t issues. The i s s u es s h all be resolved within 90 day s of this order

. A supplemental transcr ipt containing al l aff idavits and int err og atories or the t ransc ription of t he court repor ter’s notes from any hear ing or deposition, along with the trial court’ s supplemental finding s of fa ct and c onclusions of law, shall be for war ded to this Court withi n 120 day s of t he date of this order. A ny extensions of ti me must be re quested by

the trial cour

t and shall be obtaine d from this Court.

Filed: September

12, 2018 Do not publish

Be fore making this determination, the trial cour t shall give Applicant the oppor tunity to 1 respond a nd explain his delay

. See E x parte Smith , 444 S.W .3d 661, 670 (Tex. Crim. App. 2014) (“A n applicant must be a ffor ded this opportunity —irrespe ctive of w hether the State alleg es the delay disadvantag es its own position—before a court re commends or c oncludes that lac hes compels the a

pplication’s denial” ).