IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
ON MOTION FOR EXTENSION OF TIME TO FILE APPLICATION FOR WRIT OF HABEAS CORPUS IN CAUSE NO. 1021168
IN THE 183RD JUDICIAL DISTRICT COURT
HARRIS COUNTY
O R D E R
This case is before us because applicant has filed a motion for an extension of time to file an application for writ of habeas corpus pursuant to the provisions of Texas Code of Criminal Procedure Article 11.071. (1)
On June 27, 2006, a jury convicted applicant of capital murder and the trial court sentenced him to death. (2) The trial court immediately appointed Dick Wheelan to represent applicant on an Article 11.071 writ application. In April 2008, Wheelan began withdrawing from his cases due to a serious medical condition. On April 17, 2008, Wheelan was released from his duties in this case, and Patrick F. McCann was appointed to replace him as applicant's habeas counsel.
Just over two months later, on June 24, 2008, the State filed its brief on applicant's direct appeal. Under Article 11.071 § 4(b), this initially made applicant's writ application due in the trial court no later than August 8, 2008. Because McCann timely requested and received the statutorily allowed 90-day extension for filing, applicant's writ application is now due in the trial court on or before November 6, 2008. However, as the due date draws closer, McCann, who has only had since April 2008 to conduct his own investigation of applicant's case, has expressed concern over whether he will have enough time to complete that investigation. Acknowledging that the trial court is without the authority to grant him another extension, but believing that he still needs more time than he has remaining to properly develop applicant's claims, McCann has filed with this Court an early motion for an extension of time under Article 11.071 § 4A.
Given the extraordinary and unfortunate circumstances of this situation, McCann's extraordinary diligence in pursuing the case, and the lack of an objection from the State, we hold that applicant has shown good cause supporting his request for additional time to file applicant's writ application. Although the extension allowed by Article 11.071 § 4A is technically only invoked after a party has failed to timely file a writ application, we grant McCann's preemptive motion and hold that he shall have an additional 180 days from the day the writ application is currently due to file the application. Thus, applicant's writ application shall be due in the trial court on or before May 5, 2009.
IT IS SO ORDERED THIS THE 1ST DAY OF OCTOBER, 2008.
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