             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                         NO. WR-88,579-02


                             EX PARTE JOEL MAGAÑA, Applicant


               ON APPLICATION FOR A WRIT OF HABEAS CORPUS
            CAUSE NO. 2009CRN000331D1 IN THE 49TH DISTRICT COURT
                            FROM WEBB 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 one count of

murder and sentenced to seventy-five years imprisonment and two counts of robbery and sentenced

to ten years’ imprisonment in each count. The Fourth Court of Appeals reversed his conviction in

one of the robbery counts and reformed the judgment to delete his conviction and punishment in that

count. The intermediate court affirmed the judgment as reformed. Magaña v. State, No. 04-10-

00120-CR (Tex. App.—San Antonio August 10, 2011) (not designated for publication).

        Applicant contends, among other things, that counsel erred by failing to file a petition for
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discretionary review on Applicant’s behalf. Applicant alleges that counsel assured Applicant that

counsel would file the petition for discretionary review which caused Applicant to believe in good

faith that a timely appeal would be filed. According to Applicant, counsel did not file a petition of

discretionary review causing Applicant to lose the ability to file a petition for discretionary review

himself or hire additional counsel to do so.

        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.

The trial court may use any means set out in TEX . CODE CRIM . PROC. art. 11.07, § 3(d).

        It appears that Applicant is represented by counsel. The trial court shall determine whether

Applicant is represented by counsel, and if not, 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 appellate

counsel assured Applicant, or led Applicant to believe, that counsel would file a petition for

discretionary review on Applicant’s behalf. If not, the trial court shall determine whether appellate

counsel failed to timely advise Applicant of his right to file a pro se PDR within the time limitations

as set forth in TRAP 48.4. The trial court shall also make findings as to whether Applicant’s claims
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are barred by the equitable doctrine of laches.1 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.



Filed: September 12, 2018
Do not publish




       1
         Before making this determination, the trial court shall give Applicant the opportunity to
respond and explain his delay. See Ex parte Smith, 444 S.W.3d 661, 670 (Tex. Crim. App. 2014)
(“An applicant must be afforded this opportunity—irrespective of whether the State alleges the
delay disadvantages its own position—before a court recommends or concludes that laches
compels the application’s denial”).
