Rubio, John Allen ( 2012 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. WR-65,784-02

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EX PARTE JOHN ALLEN RUBIO

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ON NOTICE OF NO APPLICATION FOR WRIT OF HABEAS CORPUS FILED IN CAUSE NO. 03-CR-457-B IN THE 138^TH JUDICIAL DISTRICT COURT CAMERON COUNTY

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Per Curiam.

O R D E R

This case is before us because no application for writ of habeas corpus has been timely filed pursuant to the provisions of Texas Code of Criminal Procedure Article 11.071. ⁽¹⁾

On August 10, 2010, the trial court appointed David A. Schulman to represent applicant in a post-conviction writ of habeas corpus under Article 11.071. On November 9, 2011, the State filed in this Court its brief on applicant's direct appeal. Pursuant to Article 11.071, § 4(a), applicant's application for writ of habeas corpus was due in the convicting court on or before December 24, 2011. ⁽²⁾

According to applicant's counsel, counsel delivered to the trial judge on November 30, 2011, an unopposed motion for an extension of time to file applicant's habeas application as permitted by Article 11.071, § 4(b). On December 12, 2011, counsel faxed a letter to the judge reminding him of the pendency of the motion. However, despite counsel's efforts, and despite the trial judge's apparent intent to grant the motion for extension, the trial judge did not rule on the motion for extension before the date the application was due to be filed. Therefore, no application was timely filed, and this Court must determine the appropriate action under Article 11.071, § 4A.

When counsel notified this Court that no writ had been filed by the due date, he also informed the Court that he originally requested the motion for extension from the trial court because he had motions for experts pending before the judge but he was having difficulty getting the judge to rule on his motions in a timely manner. When the judge responded to an order issued by this Court, he noted that there have been numerous misunderstandings throughout this case regarding whether the Cameron County clerk's office or the Hidalgo County clerk's office was in charge of the filings. These misunderstandings apparently resulted in the judge either not receiving certain papers and motions or receiving them untimely.

Given the showing of good cause by counsel, and the additional explanation from the trial judge, we have determined that counsel should be permitted to continue representing applicant on habeas and a new due date should be set. Applicant's application for writ of habeas corpus shall be filed in the trial court on or before 180 days from the date of this order. See Article 11.071, § 4A.

IT IS SO ORDERED THIS THE 26^TH DAY OF SEPTEMBER, 2012.

Do Not Publish

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

2. Because December 24, 2011, was both a Satur been filed by the due date, he also informed the Court that he originally requested the motion for extension from the trial court because he had motions for experts pending before the judge but he was having difficulty getting the judge to rule on his motions in a timely manner. When the judge responded to an order issued by this Court, he noted that there have been numerous misunderstandings throughout this case regarding whether the Cameron County clerk's day and a holiday, applicant's application would have been timely filed if filed in the trial court on or before December 27, 2011, the first day after the 24^th that was neither a weekend day nor a holiday.