Gallo, Tomas Raul ( 2013 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. WR-77,940-02

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EX PARTE TOMAS RAUL GALLO

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ON APPLICATION FOR WRIT OF HABEAS CORPUS IN CAUSE NO. 940093 IN THE 182^nd JUDICIAL DISTRICT COURT HARRIS COUNTY

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Per Curiam. O R D E R

This is a subsequent application for writ of habeas corpus filed pursuant to the provisions of Texas Code of Criminal Procedure Article 11.071, § 5.  

Applicant was convicted of the offense of capital murder in February 2004. The jury answered the special issues submitted under Article 37.071 of the Texas Code of Criminal Procedure, and the trial court, accordingly, set punishment at death. This Court affirmed Applicant's conviction and sentence on direct appeal. Gallo v. State, 239 S.W.3d 757 (Tex. Crim. App. 2007). This Court denied relief on Applicant's initial post-conviction application for writ of habeas corpus. Ex parte Gallo, No. WR-77,940-01 (Tex. Crim. App. January 9, 2013).   

State habeas counsel Jerome Godinich, Jr. filed this subsequent habeas application in the trial court on April 22, 2013. ⁽¹⁾ It was received in this Court on May 13, 2013. On May 30, 2013, this Court received "Applicant's Motion to Strike Unauthorized Subsequent Writ," which was filed by federal habeas counsel Allen Richard Ellis. Ellis complains that Godinich filed the instant habeas application after Applicant informed Godinich that he no longer wanted him to represent him or to file anything further on his behalf. Thus, Ellis contends that Godinich "has no authority to file this unauthorized subsequent writ." Godinich responds that he has "a duty to continue [his] representation until and unless relieved of [his] duties by the convicting court," and that the trial court judge has "reaffirmed [his] obligation to continue to represent [Applicant]."

This cause is remanded to the trial court so that the habeas corpus record can be supplemented with affidavits or testimony from Applicant, Godinich, and Ellis regarding how to proceed and how to resolve the conflicting positions of state and federal habeas counsel. Following receipt of this information, the trial court should make any findings of fact and conclusions of law which it deems relevant and appropriate to the procedural posture of the instant habeas application. The trial court shall not address the merits of the claim raised in the application.

This cause will be held in abeyance pending the trial court's compliance with this order. The trial court shall resolve the issues presented within 60 days of the date of this order. A supplemental transcript containing the trial court's resolution or any additional findings of fact and conclusions of law shall be returned to this Court within 90 days of the date of this order. ⁽²⁾

IT IS SO ORDERED THIS THE 26^TH DAY OF JUNE, 2013.

Do Not Publish

1. The application was signed by Godinich and R. Scott Shearer. The signature page indicates that Godinich is "Habeas Counsel for Applicant" and Shearer is "Counsel for Applicant (On the writ only)."

2. Any extensions of this time period should be obtained from this Court.