IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-64,186-01
EX PARTE HERNANDO ESTRADA RAMIREZ, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 2003-745-C IN THE 54TH DISTRICT COURT
MCLENNAN COUNTY
O R D E R
This is an application for a writ of habeas corpus that was transmitted to this Court by the clerk of the trial court pursuant to the provisions of Tex. Code Crim. Proc. art. 11.07. Applicant was convicted of the offense of murder and sentenced to confinement for ninety-nine years. Applicant's conviction was affirmed on appeal. Ramirez v. State, No. 10-04-00078-CR (Tex. App.--Waco, delivered March 23, 2005, no pet.).
Applicant contends that he was denied the opportunity to file a petition for discretionary review (PDR). The trial court has entered findings of fact or conclusions of law recommending that Applicant be granted an out-of-time PDR. However, we do not believe that those factual findings are sufficient to completely resolve the issues presented. Because Applicant has stated facts requiring resolution and because this Court cannot hear evidence, it is necessary for the matter to be remanded to the trial court for resolution of those issues. The trial court shall resolve those issues as set out in Tex. Code Crim. Proc. art. 11.07, § 3 (d), in that it may order affidavits, depositions, or interrogatories from appellate counsel, or it may order a hearing. In the appropriate case the trial court may also rely on its personal recollection.
If the trial court elects to hold a hearing, it shall first decide whether Applicant is indigent. If the trial court finds that Applicant is indigent and Applicant desires to be represented by counsel, the trial court shall then, pursuant to the provisions of Tex. Code Crim. Proc. art. 26.04, appoint an attorney to represent him at the hearing.
The trial court shall then make findings of fact as to whether appellate counsel timely notified Applicant that his conviction had been affirmed on appeal and that he was entitled to file a PDR pro se. The trial court shall then make findings of fact as to whether Applicant is entitled to an out-of-time PDR. The trial court shall also make any further findings of fact and conclusions of law it deems relevant and appropriate to the disposition of the application for writ of habeas corpus.
Because this Court does not hear evidence, Ex Parte Rodriquez, 334 S.W.2d 294 (Tex.Crim.App. 1960), this application for a post-conviction writ of habeas corpus will be held in abeyance pending the trial court's compliance with this order. The trial court shall resolve the issues presented within 90 days of the date of this order. (1) A supplemental transcript containing any affidavits, the transcription of the court reporter's notes from any interrogatories or hearings held, along with the trial court's findings of fact and conclusions of law, shall be returned to this Court within 120 days of the date of this order. (2)
IT IS SO ORDERED THIS THE 26th DAY OF APRIL, 2006.
DO NOT PUBLISH
1. In the event any continuances are granted, copies of the order granting the continuance
should be provided to this Court.
2. Any extensions of this time period shall be obtained from this Court.