EX PARTE DAVID T. MCGARY, AKA DAVID SANDERS (other)

IN THE COURT OF CRIMINAL APPEALS 
OF TEXAS 

NO. WR-72,110-02 
EX PARTE DAVID T. MCGARY, AKA DAVID SANDERS, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 4006 IN THE 46TH DISTRICT COURT 
FROM HARDEMAN COUNTY 
Per curiam.
O R D E R

Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the clerk of the trial court transmitted to this Court this application for a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of possession of a controlled substance and sentenced to ninety-nine years' imprisonment. The Seventh Court of Appeals affirmed his conviction. McGary v. State, No. 07-07-00503-CR (Tex. App.-Amarillo 2008, no pet.).

Applicant contends that his appellate counsel rendered ineffective assistance because counsel failed to advise him of his right to petition for discretionary review pro se. On August 19, 2009, we remanded this application for findings of fact and conclusions of law. On remand, the trial court adopted the State's proposed findings of fact and conclusions of law and recommended that we deny relief. In its proposed findings and conclusions, the State noted that appellate counsel "sent Applicant a letter dated September 11, 2008, informing Applicant of the mandate and including instructions that a petition for discretionary review would need to be filed by Applicant within thirty days of the date of the mandate." Accordingly, the State concluded that Applicant was advised of his right to file a petition for discretionary review. We believe that the record should be further developed. On the record before this Court, appellate counsel advised Applicant that his conviction had been affirmed well after the deadline for filing a petition for discretionary review. (1) The trial court shall order appellate counsel to file a second affidavit and explain whether he timely advised Applicant that his conviction had been affirmed. See Ex parte Wilson, 956 S.W.2d 25 (Tex. Crim. App. 1997).

If the trial court elects to hold a hearing, it shall determine whether Applicant is indigent. If Applicant is indigent and wishes to be represented by counsel, the trial court shall appoint an attorney to represent him at the hearing. Tex. Code Crim. Proc. art. 26.04.

The trial court shall make further findings of fact as to whether Applicant's appellate counsel timely advised Applicant that his conviction had been affirmed. The trial court shall also make any other findings of fact and conclusions of law that it deems relevant and appropriate to the disposition of Applicant's claim for habeas corpus relief.

This application will be held in abeyance until the trial court has resolved the fact issues. The issues shall be resolved within 90 days of this order. If any continuances are granted, a copy of the order granting the continuance shall be sent to this Court. A supplemental transcript containing all affidavits and interrogatories or the transcription of the court reporter's notes from any hearing or deposition, along with the trial court's supplemental findings of fact and conclusions of law, shall be returned to this Court within 120 days of the date of this order. Any extensions of time shall be obtained from this Court.

Filed: February 3, 2010

Do not publish

1. "The [first] petition must be filed within 30 days after either the day the court of appeals' judgment was rendered or the day the last timely motion for rehearing was overruled by the court of appeals." Tex. R. App. P. 68.2.