
 








IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NOS. AP-76,749 & 76,750


Ex parte WILLIAM ELMER HASTINGS, Applicant





ON APPLICATION FOR A WRIT OF HABEAS CORPUS
IN CAUSE NOS. W08-56619-V(A) & W09-00729-V(A)

FROM DALLAS COUNTY


 Per curiam.  Keller, P.J., not participating.

O P I N I O N


	These cases deal with whether an application for a writ of habeas corpus filed under
Article 11.07 is timely when the applicant files it on the same day that a court of appeals
issues its mandate in the applicant's direct appeal.  We hold that, absent contrary evidence,
a mandate is presumed to issue at 9:00 a.m. on the day the court of appeals issues it, thereby
making any writ application filed later in the day timely. 
	On February 19, 2010, applicant entered a plea of nolo contendere to two indictments
alleging aggravated sexual assault of a child under fourteen years of age.  The trial judge
sentenced him to fifteen years in prison on each conviction.  The Fifth Court of Appeals
upheld his convictions in an unpublished opinion on April 7, 2011. (1)  This Court denied
applicant's petitions for discretionary review on October 12, 2011.  The Court of Appeals
issued its mandate on January 10, 2012.  Applicant filed his writ applications with the
convicting court on that same day at 12:38 p.m.  The State filed its response to the
applications, addressing the merits of applicant's claims, on January 25, 2012.  But, on
February 8, 2012, the habeas judge signed an order stating that it did not have jurisdiction
to address the merits of applicant's claims, asserting that applicant "did not file his
application[s] after the mandate from the court of appeals issued."  Finding that applicant
filed his applications too soon, the trial judge sent the applications and all associated
documents to this Court without addressing the merits of applicant's claim. 
	The convicting court does not have jurisdiction to consider a post-conviction
application for a writ of habeas corpus under Article 11.07 (2) until after the court of appeals
issues the mandate in the underlying direct appeal. Ex parte Johnson, 12 S.W.3d 472, 473
(Tex. Crim. App. 2000) ("Prior to the mandate, a judgment is not final.").  In this case, the
mandate issued on the same day the applications were filed, but the record fails to show
which event occurred first. (3)
	This is a common situation that requires a uniform rule to provide guidance to the
bench, bar, and prospective habeas applicants and to reduce unnecessary and duplicative
filings, which waste scarce judicial time and resources without apparent benefit. (4) 
	We therefore hold that, absent evidence to the contrary, a direct-appeal mandate is
presumed to have issued at 9:00 a.m. on the date it issues.  This presumption may be rebutted
with evidence that the mandate actually issued later in the day and after the writ application
was filed in the convicting court.  A district court will therefore have jurisdiction over a writ
application filed after 9:00 a.m. on the day the mandate issues in the underlying direct appeal
unless evidence to the contrary appears in the habeas record.
	Applying this presumption in these cases, we conclude that the convicting court did
have jurisdiction to address the merits of applicant's claims.  We remand these cases so that
the judge of the convicting court may address the merits of applicant's claims.
Delivered: May 16, 2012
Publish
1.  Hastings v. State, No. 05-10-00264-CR & No. 05-10-00265-CR (Tex. App.-Dallas
April 7, 2011 pet. denied) (not designated for publication). 
2.  Tex. Code Crim. Proc. art. 11.07, § 3(a) ("After final conviction in any felony case, the
writ must be made returnable to the Court of Criminal Appeals of Texas at Austin, Texas").
3.  The applications were time-stamped at 12:38 p.m., but there is no copy of the mandate
in the habeas corpus record.  Thus we do not know the precise time that it was issued.
4.  An application that is filed before the mandate issues requires the State to respond, the
convicting court to make a determination of timeliness, and transmittal of all papers to this Court
to make a final determination of jurisdiction.  If this Court dismisses the original application for
want of jurisdiction, the applicant simply begins all over again, refiling another application and
starting the process anew.  
