## 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-92,732-02

EX P ARTE F RANCISCO CASTIO BE RBER, JR., Appli cant

ON AP P LICATION FOR A WRIT OF HABEAS CORP US CAUSE NO. W08-71908-K (A) IN THE CRIMINAL DISTRICT COURT NO. 4 F ROM DALLAS COUNTY

Per curiam . O R D E R Applicant enter ed an open plea of g uilty to ag g rava ted sexual assault of an elder ly or disabled person and was sentenc ed to life imprisonment. The Fifth Court of Appea ls aff irmed his conviction. Berber v. State , No. 05-08-01 4 6 7 -CR (Tex. App. — Dallas Dec

. 2, 2010) (not desig nated for publication). Applicant filed this application for a writ of habea s corpus in the county of conviction, and the district cle rk for

war ded it to this C ourt. See T E X . C O D E C R I M . P R O C . art. 11.07. T h e rec ord initially rec eived by this Court appea red to be incomplete, in that it d i d n o t contain copies of various exhibi ts ref ere nced by Applicant as alleg edly having been filed in support of his application. Fur

thermore , the rec ord did not contain copies of most of the plea documents in this case , or of any documents rela ting to the competenc y evalua tion whic h is the subject of one of2

Applicant’s ha

beas c laims. On J uly 28, 2021, th i s Court rema nded this case to the trial court to obtain aff idavits and finding s addre ssing Applicant’s alleg ations. This Court’s rema nd o rd er included instructions to supplement the habea s rec ord with “copie s any exhibi ts or memoranda filed by Applicant i n

co n j u n ct ion with his habea s application, and with copies of all written plea paper s and any documents re levant to the compe tency evalua tions and plea proc eeding s in this case.” On September 8, 2021, this Court rec eive d t h e s u pplemental rec ord afte r rema nd, which consisted of an aff

idavit f rom trial counsel a

nd the trial cour

t’s finding s of fac t a

nd conclusions of law, but did not include any of the other

documents spec ified in this Court’s remand orde r. On September 15, 2021, this C o u rt o rder ed the district cler k to supplement the rec ord by either forwa

rding to this Court or cer

tify ing in writing that the exhibi ts to which Applicant ref ers in his application, wr itten plea pape rs from the or igina l plea proc eeding s, and docume nts pertaining to Applicant’s competenc y evalua tion are not part of the rec ord. The cler k was order ed to respond within thirty day s from the date of the order but the clerk has not responde d to t h i s C ourt’s order, except that on Apr i l 4 , 2 022, this Court rec eived a letter from the district cler k reque sting an unspecifie d extension of tim e to furthe r re sear ch whe ther such doc uments exi st. We there fore rema

nd this application ag ain to the trial court. The trial court shall ensure that the habea s rec ord is supplemented with co p i es an y exhibi ts or memoranda filed by Applicant in conjunction with his habea s ap p l i ca t ion, and with copies of all written plea paper s and any documents rele vant to the competenc y evalua tions and plea proce eding s in this case . I f no exhibi ts

or memoranda wer e filed in conjunction with the application, or if no plea paper s or documents rele vant to the competenc y evalua tion exis t, the trial court shall make finding s of fac t to that eff ect.3

The trial court shall respond within thirty day s from the date of this order

. Any extensions of time must be reque sted by

the trial cour

t and obtained f

rom this Court.

Filed: May

18, 2022 Do not publish