           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS
                                       NO. AP-76,265

            EX PARTE STANLEY WAYNE KIRKPATRICK, Applicant



             ON APPLICATION FOR A WRIT OF HABEAS CORPUS
             CAUSE NO. 2004-474-C2 IN THE 54 TH DISTRICT COURT
                        FROM MCLENNAN COUNTY

     P RICE, J., filed a concurring opinion in which J OHNSON, K EASLER, and
C OCHRAN, JJ., joined.

                           CONCURRING OPINION

       In this application for a writ of habeas corpus, the Applicant originally requested relief

on July 6, 2009, based on ineffective assistance of counsel. Because the trial judge was not

fully responsive to this Court’s order on our first remand, we subsequently remanded the

application a second time in late November, only two months before the Applicant’s sentence

was scheduled to discharge. After receiving the response to our second remand order, in

which the convicting court found that the Applicant had not been appointed appellate counsel

until months after the deadline for filing a timely notice of appeal and found that the
                                                                                Kirkpatrick — 2

Applicant could be entitled to an out-of-time appeal, we now grant the Applicant an out-of-

time appeal.

       As clearly seen in this case, unnecessarily remanding writ applications has the

potential to both hamstring applicants and waste judicial resources. Presumably, had the trial

judge appointed appellate counsel in a timely manner or answered our first remand order

adequately, the Applicant would not have been potentially prejudiced by being discharged

before any relief could be granted.1 Moreover, much of the time spent reviewing the

application multiple times could have been used in other judicial pursuits. I agree with the

disposition of this application. I write only to add that, in the future, I would advise

convicting courts to act promptly in discharging their duties with respect to habeas applicants

and to respond appropriately to orders issued by this Court.




Delivered: December 16, 2009
Do Not Publish




       1

       If an applicant’s sentence has discharged, this Court will dismiss his application. He would
then have to file a second application, wherein he would be required to identify collateral
consequences. TEX . CODE CRIM . PROC. art. 11.07 § 3(c).
