Norman, Lejames ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. WR-74,743-01

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EX PARTE LE JAMES NORMAN

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ON NOTICE OF UNTIMELY APPLICATION FOR WRIT OF HABEAS CORPUS FILED IN CAUSE NO. 06-1-7346 IN THE 24^TH JUDICIAL DISTRICT COURT JACKSON COUNTY

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Per Curiam.

O R D E R

This case is before us because an application for writ of habeas corpus has not been properly filed pursuant to the provisions of Texas Code of Criminal Procedure Article 11.071. ⁽¹⁾  

The trial court appointed Terry McDonald to represent applicant in a post-conviction writ of habeas corpus under Article 11.071. On May 7, 2010, the State filed in this Court its brief on applicant's direct appeal. Pursuant to Article 11.071, § 4(a), counsel should have filed applicant's writ application no later than June 21, 2010. However, the trial court granted counsel's timely motion requesting a 90-day extension for filing applicant's writ application, making the application due in Jackson County no later than Monday, September 20, 2010. ⁽²⁾ Art. 11.071, § 4(b). McDonald filed the writ application in Victoria County instead. On November 3, 2010, this Court ordered McDonald to file an affidavit explaining the circumstances surrounding his filing of the application.

McDonald's affidavit was received in this Court on November 12, 2010. Based on this affidavit, it appears that McDonald attempted to timely file the application, but he filed it in Victoria County, which was the county in which the trial was held. The Victoria County District Clerk then forwarded the application to the Jackson County District Clerk. To the extent that this filing violated the time limits of Article 11.071, we hold that the application shall be considered timely filed in Jackson County as of September 28, 2010. ⁽³⁾ The trial court is ordered to proceed with its review of the application. The timelines set out in Article 11.071, §§ 6-9, shall start to run as of the day this order is issued.

IT IS SO ORDERED THIS THE 8^th DAY OF DECEMBER, 2010.

Do Not Publish

1.

Unless otherwise indicated all references to Articles refer to the Code of Criminal Procedure.

2.

The evidence indicates that the trial court granted applicant's request for an extension on June 18, 2002, and that the order granting the extension was delivered to the district clerk on June 21, 2010. This made applicant's writ application due on September 19, 2010. However, because this date fell on a Sunday, the application would have been timely filed by Monday, September 20, 2010.

3.

Following receipt of the writ application, the Jackson County District Court Clerk file-stamped it on September 28, 2010.