Opinion
NO. WR-73,408-05
04-14-2021
EX PARTE William Michael MASON, Applicant
David R. Dow, Houston, for Applicant.
David R. Dow, Houston, for Applicant.
ORDER
Per curiam.
In March 1992, a jury found Applicant guilty of the offense of capital murder and the trial court sentenced him to death. See TEX. PENAL CODE § 19.03(a) and TEX. CODE CRIM. PROC. art. 37.071. This Court affirmed Applicant's conviction and sentence on direct appeal. Mason v. State , 905 S.W.2d 570 (Tex. Crim. App. 1995). On March 20, 2013, this Court granted Applicant habeas relief in the form of a new punishment trial. Ex parte Mason , No. AP-76,997, 2013 WL 1149829 (Tex. Crim. App. Mar. 20, 2013) (not designated for publication). The trial court held a new punishment trial in 2015. Based on the jury's answers to the statutory punishment questions set out in Article 37.0711, the trial court again sentenced Applicant to death.
Unless otherwise indicated, all references in this order to Articles refer to the Texas Code of Criminal Procedure.
On February 10, 2017, the State filed in this Court its brief on Applicant's direct appeal of the punishment retrial. Pursuant to Article 11.071 §§ 4(a) and (b), Applicant's initial application for a writ of habeas corpus after retrial was due to be filed in the trial court on or before June 26, 2017, assuming a motion for extension was timely filed and granted. See Art. 11.071 §§ 4(a) and (b).
On January 13, 2021, because it had been three and a half years since the application was due in the trial court, and because it appeared that the writ application was filed on a date outside of the time allowed by Article 11.071, we issued a two-part order to the trial court. First, we directed the trial court to determine within 15 days of the order's date whether Applicant timely filed his writ application. If the court determined that Applicant did not timely file the application, then it should order the record forwarded to this Court immediately for a determination under Article 11.071 § 4A. If, on the other hand, it determined that Applicant timely filed the application, then, we ordered, the court should resolve any remaining issues in the case within 60 days from the order's date. We also ordered the clerk to thereafter immediately transmit the complete writ record to this Court. This order made the case due in this Court no later than March 15, 2021.
Since we issued the January 13 order, it has come to our attention that the writ application was, in fact, not timely filed. Article 11.071 § 2(b) provides: "If a defendant is sentenced to death the convicting court, immediately after judgment is entered ..., shall determine if the defendant is indigent and, if so, whether the defendant desires appointment of counsel for the purpose of a writ of habeas corpus." If the defendant desires the appointment of habeas counsel, then Article 11.071 § 2(c) provides that, "At the earliest practical time, but in no event later than 30 days, after the convicting court makes the findings required under Subsections (a) and (b), the convicting court shall appoint [counsel]." Article 11.071 § 4(a) then provides:
An application for a writ of habeas corpus, ..., must be filed in the convicting court not later than the 180th day after the date the convicting court appoints counsel under Section 2 or not later than the 45th day after the date the state's original brief is filed on direct appeal with the court of criminal appeals, whichever date is later.
(Emphasis added.)
After his punishment retrial, Applicant was sentenced to death on November 19, 2015. By Article 11.071 § 2(c)’s plain language, the convicting court had 30 days to appoint counsel. And it did. On December 7, 2015, the convicting court, within the 30 day window, appointed the Office of Capital and Forensic Writs to represent Applicant in habeas proceedings. The State subsequently filed its brief on direct appeal on February 10, 2017. Because 45 days after February 10, 2017, is a later date than 180 days after OCFW's Section 2 appointment, that date became the deadline for filing Applicant's habeas application. Thus, the application was due to be filed in the trial court on or before March 27, 2017. Had Applicant thereafter timely requested and the court granted the statutorily allowed 90-day extension, the deadline for filing Applicant's habeas application in the trial court could have been as late as June 26, 2017. See Art. 11.071 §§ 4(a) and (b); see also In re Reynoso , 161 S.W.3d 516 (Tex. Crim. App. 2005) (holding that "Article 11.071 normally allows only 30 days after the finding of indigency to appoint counsel under Section 2(a-c). An appointment made 10 months later and after the State's response brief has been filed on direct appeal is an untimely appointment not allowed by the statute."). But Applicant met neither of these deadlines.
On February 20, 2017, over a year after its appointment and just 35 days before the application's statutory due date, OCFW determined that it had a conflict in the case. The trial court allowed OCFW to withdraw and appointed David Dow to take over the representation the next day. Under the language of Article 11.071 and In re Reynoso , Dow's appointment was not made under Section 2 of the statute and was, therefore, subject to the original March 27, 2017 due date. When Dow thereafter filed a request for a 90-day extension on April 21, 2017, that request (1) was untimely, and (2) mistakenly indicated to the trial court that the due date for filing the application was reset to 180 days after Dow's appointment. The trial court's grant of this request was not authorized.
Instead, when no application was filed on March 27, 2017, and no request for extension was filed before that date, the case should have been forwarded to this Court for proceedings under Article 11.071 § 4A. Under Section 4A, a counsel who files an untimely writ application shall, on command of this Court, "show cause as to why the application was untimely filed or not filed before the filing date." At the conclusion of the counsel's presentation, the Court may:
(1) find that good cause has not been shown and dismiss the application;
(2) permit the counsel to continue representation of the applicant and establish a new filing date for the application, which may be not more than 180 days
from the date the court permits the counsel to continue representation; or
(3) appoint new counsel to represent the application and establish a new filing date for the application, which may be not more than 270 days after the date the court appoints new counsel.
In the motion for extension filed with the trial court, counsel explained that he needed more time to investigate an especially complicated ineffective assistance of counsel claim raised in the application. Because he had only been appointed to the case for two months, he asserted that he needed the extra time to conduct a proper investigation. Instead of delaying this four-year-old case further, we will accept the reasons given in the unauthorized and untimely motion as a showing of good cause under Section 4A and declare the writ application to be timely filed on November 20, 2017. See Art. 11.071 §§ 4(d) (providing that a trial court that receives an untimely application shall immediately send a copy of that application to the Court of Criminal Appeals) and 4A (detailing actions the Court of Criminal Appeals may take regarding an untimely filed application).
We will now address the trial court's request for an extension of the time set in our January 13 order. Citing to pandemic-related issues regarding the holding of live hearings, the trial court has requested an extension of time until at least July 13, 2021. We will grant the trial court's request. The case is now due in this Court on or before July 13, 2021.
Any further extensions of time shall be requested by the trial judge, or on the judge's behalf, and obtained from this Court. Any such request shall also be accompanied by a detailed statement showing what efforts have been undertaken to resolve the issues raised and good cause for why an additional extension is warranted.
IT IS SO ORDERED THIS THE 14th DAY OF APRIL, 2021.