                                                              WR-83,044-01
                                              COURT OF CRIMINAL APPEALS
                                                               AUSTIN, TEXAS
                                            Transmitted 3/23/2015 3:21:17 PM
                                              Accepted 3/24/2015 2:47:40 PM
Returnable to the Court of Criminal   Appeals of Texas ABEL ACOSTA      CLERK

                    Wr__________                    RECEIVED
                                             COURT OF CRIMINAL APPEALS
                                                    3/24/2015
                                               ABEL ACOSTA, CLERK
 In the 183rd District Court of Harris County, Texas
087941001010 - The State of Texas vs. GARCIA, RODRIGO
                     (Court 183)


WRIT COUNSEL’S MOTION TO THE COURT OF CRIMINAL APPEALS
 FOR LEAVE TO SUPPLEMENT OR AMEND THE APPLICATION FOR
  POST-CONVICTION WRIT OF HABEAS CORPUS, PURSUANT TO
  TEX.CODE CRIM.P.art.11.07, AFTER TRANSCRIPTION OF
 REPORTER’S NOTES (WRIT COUNSEL DID NOT TRY CASE. NO
                  APPEAL WAS TAKEN.)
                  * * * * * * * * * *

                         Larry Warner
                         Attorney at Law
                         3109 Banyan Circle
                         Harlingen, Tx 78550
                         Phone (956)230-0361
                         Fax (866) 408-1968
                         State Bar of Texas #20871500
                         email: office@larrywarner.com
                         website: larrywarner.com
                         Bd.Cert.Crim.Law, TBLS (1983)
                         Member of the Bar, Supreme
                         Court     of    the    United
                         States(1984)
                         Attorney for Applicant




                       Page 1 of 6
To the Honorable Presiding Judge and Associate Judges

of the Court of Criminal Appeals of Texas:

    Applicant presents this Writ Counsel’s Motion to

the Court of Criminal Appeals for Leave to Supplement or

Amend the Application for Post-conviction Writ of Habeas

Corpus,   Pursuant   to   Tex.Code        Crim.P.art.11.07,   after

Transcription of Reporter’s Notes, as follows:

    1. Applicant has filed an application for post-

conviction writ of habeas corpus in the convicting court,

the 183rd District Court of Harris County assailing the

noted conviction. It is pending.

    2. Applicant is seeking to have the reporter’s notes

transcribed.

    3. Writ Counsel did not try the case.

    4. There was no appeal, so there is no reporter’s

record, yet.

    5. Applicant seeks the leave of the Court of Criminal

Appeals   to   supplement     or     to     amend   his   instated

application once the reporter’s record is complete.

    6. This Court previously allowed litigants to file

                            Page 2 of 6
“skeletal”    applications         when        the   Antiterrorism   and

Effective Death Penalty Act had just begun to come into

force, so that the federal statute of limitations on

filing    federal    “motions       to    vacate     sentence”   (habeas

corpus)    would    be    tolled.        Subsequent     amendments   and

supplements        were    allowed             to    those    “skeletal”

applications:

          “[T}his Court's order of April 22, 1997... gave
          him permission to file a skeletal application so
          that   the   time    limits   of   the   federal
          Antiterrorism and Effective Death Penalty Act
          could be tolled.*** His motion and our order
          contemplated that the skeletal application would
          be supplemented, and our order specified, “Any
          supplemented application shall be deemed an
          original, not a successor, application.” Ex
          ParteSmith,977 S.W.2d610fn1(Tex.Crim.App.,EnBanc
          1998)

    7. Applicant simply cites Smith to show that this

Court has indeed allowed supplementation of applications

for post-conviction habeas corpus. There is no question

here of the tolling of the federal statute of limitation

on “motions to vacate sentence” . Applicant, however,

does seek to avoid a claim of laches and files his

application     before     the      reporter’s        notes   have   been

                                 Page 3 of 6
transcribed.

    The   Court   of   Criminal    Appeals     should   use   its

discretion to allow supplementation or amendment of the

instant application for habeas corpus because the only

difference between Smith’s situation and Garcia’s is that

Smith knew exactly when time would run out and Garcia is

left with the ephemeral uncertainty of laches and is thus

impelled to file his application without the benefit of

a reporter’s record. See: “[T]he length of delay alone

will not constitute either unreasonableness of delay or

prejudice.”Ex           Parte           Carrio,992S.W.2d

486,488hn2(Tex.Crim.App.1999) And more immediately: Ex

P a r t e         P e r e z , 3 9 8                S . W . 2 d

206,212hn5(Tex.Crim.App.203)[common          law   rather     than

federal standard of Carrio applies for laches]

            Conclusion and request for relief

    The Court of Criminal Appeals should grant Applicant

leave to supplement or to amend his Application once the

reporter’s record is prepared. Smith was allowed an

opportunity to supplement a skeletal application to avoid


                          Page 4 of 6
a statute of limitations. Garcia should be allowed to

supplement or amend, since he has filed before the record

is complete in order to avoid laches.

                             RESPECTFULLY SUBMITTED
                             MARCH 23, 2015
                     BY:
                             /s/Larry Warner
                             Larry Warner
                             Counsel for Defendant
                             3109 Banyan Circle
                             Harlingen, Texas 78550
                             Phone (956)230-0361
                             Fax   (866)408-1968
                             Email: Office@larrywarner.com
                             Website: www.larrywarner.com
                             Texas   Bar#20871500;USDC,SDTX
                             1230; Member, Bar of the
                             Supreme Court of the United
                             States (1984)
                             Board Certified, Criminal Law,
                             Texas    Board     of    Legal
                             Specialization(1983)




                           Page 5 of 6
                Certificate of Service

    I sent a true copy of this           Motion for Leave to Use

Civil Remedy in Habeas Corpus Proceeding and this Motion

to Produce Reporter's Notes of Trial to the Harris County

District Attorney Office at 1201 Franklin Street, Suite

600, Houston, Texas 77002-1923 by USPS on MARCH 23, 2015.


                             RESPECTFULLY SUBMITTED
                             MARCH 23, 2015
                     BY:
                             /s/Larry Warner
                             Larry Warner
                             Counsel for Rodrigo Garcia




                           Page 6 of 6
