Ross, Vaughn ( 2007 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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WR-60,294-01

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EX PARTE VAUGHN ROSS

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ON APPLICATION FOR WRIT OF HABEAS CORPUS IN CAUSE NO. 2001-435.563 FROM THE 137^TH DISTRICT COURT OF LUBBOCK COUNTY

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Per Curiam. ORDER

This is a motion to remand the application to the convicting court to allow applicant time to file proposed findings of fact pursuant to Texas Code of Criminal Procedure, Article 11.071, Section 8.

Applicant was convicted of capital murder on September 24, 2002. We affirmed the conviction and sentence on direct appeal. Ross v. State, 133 S.W.3d 618 (Tex. Crim. App. 2002). On March 26, 2004, applicant filed his initial application for writ of habeas corpus

pursuant to Article 11.071. On July 10, 2007, this Court received a copy of the application and the findings of the convicting court from the District Clerk of Lubbock County. ⁽¹⁾

Applicant argues that, on May 25, 2007, the convicting court issued an order pursuant to Article 11.071, Section 8(a), stating that there were no material previously unresolved factual issues in the application and ordering the parties to submit proposed findings of fact and conclusions of law within 30 days. The State filed its proposed findings 39 days later on July 3, 2007. The convicting court adopted the findings on the same day and ordered the district clerk to forward the application, "any filed findings," and the State's findings which he had adopted in their entirety. Applicant's counsel and co-counsel have both provided statements that they did not receive service of the May 25, 2007, order and did not know about the order until after the record was sent to this Court.

We believe applicant is entitled to the relief sought in his motion. The case is remanded to the convicting court. Applicant has filed proposed findings of fact and conclusions of law. The convicting court, within 15 days from the date of this order, shall submit new findings of fact or amend, supplement, or affirm the findings of fact and conclusions of law previously entered and direct the clerk of the court to return the record to this Court.

IT IS SO ORDERED THIS THE 10^TH DAY OF OCTOBER, 2007.

Do Not Publish

1.

This Court had received the application and State's response from the district clerk in October, 2004.