Green, Mark Allen ( 2017 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-86,437-01
EX PARTE MARK ALLEN GREEN, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. C34,826 IN THE COUNTY COURT AT LAW
FROM NAVARRO COUNTY
Per curiam.
ORDER
Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the
clerk of the trial court transmitted to this Court this application for a writ of habeas corpus. Ex parte
Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of continuous sexual
abuse of a child and sentenced to fifty years’ imprisonment. The Tenth Court of Appeals affirmed
his conviction. Green v. State, No. 10-13-00131-CR (Tex. App.—Waco Jun. 26, 2014) (not
designated for publication).
Applicant contends that his appellate counsel rendered ineffective assistance because counsel
did not timely notify Applicant that his pro se motions for rehearing had been denied. Alternatively,
Applicant argues that he is entitled to the opportunity to file an out-of-time petition for discretionary
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review due to a breakdown in the system. Ex parte Riley, 193 S.W.3d 900 (Tex. Crim. App. 2006).
Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington,
466 U.S. 668 (1984); Ex parte Wilson, 956 S.W.2d 25 (Tex. Crim. App. 1997). In these
circumstances, additional facts are needed. Pursuant to Ex parte Rodriguez, 334 S.W.2d 294, 294
(Tex. Crim. App. 1960), the trial court is the appropriate forum for findings of fact. The trial court
shall order appellate counsel to respond to Applicant’s claim of ineffective assistance of counsel on
appeal. The trial court may use any means set out in TEX . CODE CRIM . PROC. art. 11.07, § 3(d).
If the trial court elects to hold a hearing, it shall determine whether Applicant is indigent.
If Applicant is indigent and wishes to be represented by counsel, the trial court shall appoint an
attorney to represent Applicant at the hearing. TEX . CODE CRIM . PROC. art. 26.04.
The trial court shall make findings of fact and conclusions of law as to whether Applicant’s
appellate counsel timely informed Applicant that motions for rehearing were denied. The trial court
shall also make specific findings addressing Applicant’s claim that a breakdown in the system
prevented him from pursuing discretionary review. The trial court shall also make any other findings
of fact and conclusions of law that it deems relevant and appropriate to the disposition of Applicant’s
claim for habeas corpus relief.
This application will be held in abeyance until the trial court has resolved the fact issues. The
issues shall be resolved within 90 days of this order. A supplemental transcript containing all
affidavits and interrogatories or the transcription of the court reporter’s notes from any hearing or
deposition, along with the trial court’s supplemental findings of fact and conclusions of law, shall
be forwarded to this Court within 120 days of the date of this order. Any extensions of time must
be requested by the trial court and shall be obtained from this Court.
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Filed: March 29, 2017
Do not publish