EX PARTE JUAN RAUL NAVARRO RAMIREZ

Texas Judiciary Online - HTML Opinion     Close This Window

var gAgent = navigator.userAgent.toLowerCase() var gWindows = ( (gAgent.indexOf( "win" ) != -1 ) || ( gAgent.indexOf( "16bit" ) != -1 ) ) var gIE = ( gAgent.indexOf( "msie" ) != -1 ) var bInlineFloats = ( gWindows && gIE && ( parseInt( navigator.appVersion ) >= 4 ) ) var floatwnd = 0 var WPFootnote1 = '

  Unless otherwise indicated all references to Articles refer to the Code of Criminal\ Procedure.

\ ' function WPShow( WPid, WPtext ) { if( bInlineFloats ) eval( "document.all." + WPid + ".style.visibility = 'visible'" ); else { if( floatwnd == 0 || floatwnd.closed ) floatwnd = window.open( "", "comment", "toolbars=0,width=600,height=200,resizable=1,scrollbars=1,dependent=1" ); floatwnd.document.open( "text/html", "replace" ); floatwnd.document.write( "\r\n" ); floatwnd.document.write( " p { margin-top:0px; margin-bottom:1px; } \r\n" ); floatwnd.document.write( "\r\n" ); floatwnd.document.write( WPtext ); floatwnd.document.write( '
Close'); floatwnd.document.write( "" ); floatwnd.document.close(); floatwnd.focus(); } } function WPHide( WPid ) { if( bInlineFloats ) eval( "document.all." + WPid + ".style.visibility = 'hidden'" ); } span.WPParaBox { padding: 0px; width: 100%; margin: 0px; display: block } div.WPParaBoxWrapper { padding: 0px; float: left } p { margin-top: 0px; margin-bottom: 1px } hr { height: 0.0125in; background-color: black } span.WPFloatStyle { visibility: hidden; position: absolute; left: 10px; right: 10px; background-color: rgb(255, 255, 225); border-width: 1px; border-style: solid; border-color: black; margin-top: 25px; padding: 6px; line-height: normal } span.WPNormal { font-family: "Times New Roman", serif; font-size: 12pt; font-weight: normal; font-style: normal; font-variant: normal; text-align: left; text-decoration: none; color: black; vertical-align: middle; text-indent: 0in } body { font-family: "Times New Roman", serif; font-size: 12pt; font-weight: normal; font-style: normal }

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. AP-75,167

EX PARTE JUAN RAUL NAVARRO RAMIREZ

MOTION FOR CONTINUANCE ON ORDER TO SHOW CAUSE

ON NOTICE OF NO APPLICATION FOR WRIT OF HABEAS CORPUS

FILED IN CAUSE NO. CR-0551-04-G(1)

IN THE 370TH JUDICIAL DISTRICT COURT

HIDALGO COUNTY

           Per Curiam.

 

O R D E R

           This case is before us because no application for writ of habeas corpus has been filed pursuant to the provisions of Texas Code of Criminal Procedure Article 11.071. if( bInlineFloats ) { document.write( '' ); document.write( WPFootnote1 ); document.write( '
Close' ); document.write( '' ); }

           On December 22, 2004, the trial court appointed David K. Sergi to represent applicant in an Article 11.071 post-conviction writ of habeas corpus. On December 4, 2006, the State filed in this Court its brief on applicant’s direct appeal. Pursuant to Article 11.071, § 4(a), counsel should have filed applicant’s application for writ of habeas corpus in the convicting court no later than January 18, 2007. On August 15, 2007, after granting one timely filed and two unauthorized extensions, the trial court held a hearing on applicant’s pro se motion to remove his writ counsel. The trial court granted applicant’s request and removed Sergi as counsel for reasons unrelated to his failure to timely file an application on applicant’s behalf.

           In February 2008, it was brought to the attention of this Court that no application had been filed on applicant’s behalf. Pursuant to Article 11.071, § 4A, because no application had been filed, and because it was well past the statutory due date, we ordered Sergi to file an affidavit with this Court setting out good cause for his failure to timely file the application. On the due date for filing the affidavit, counsel filed a motion for extension asserting that he could not give good cause without violating the attorney-client privilege and the attorney work product privilege. Thus, he asserted that he needed an additional 60 days to obtain the waivers from his former client and prepare his affidavit.

           However, notwithstanding counsel’s assertion, explaining whether he took steps to get the trial judge to grant his initial extension in a timely manner, explaining whether he made sufficient and timely requests for experts, and giving reasons for filing expressly unauthorized motions do not require delving into attorney-client privilege or attorney work product. Because counsel has not even attempted to show good cause for his failure to timely file an application on applicant’s behalf, we find him in contempt of Court. Within 60 days of the date of this order, David K. Sergi is ordered to pay to this Court a fine in the amount of $500.00. Also within 60 days of the date of this order, Sergi is ordered to return to the convicting court any monies paid to him by the county as attorney’s fees in this case. Similarly, should Hidalgo County have any outstanding claims from Sergi for attorney’s fees in this case, they shall not be paid. Within 90 days of the date of this order, the trial court is ordered to notify this Court whether Sergi has properly reimbursed the county. A copy of this order shall be sent to the Chief Disciplinary Officer at the State Bar of Texas.

           Paul Mansur is appointed to represent applicant and to file a writ of habeas corpus on applicant’s behalf. Counsel is ordered to file the application in the trial court on or before the 270th day from the date of this order.

           IT IS SO ORDERED THIS THE 7th DAY OF JULY, 2008.

 

Do Not Publish