SELWYN PRESTON DAVIS v. THE STATE OF TEXAS (other)

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. AP-75,796

SELWYN PRESTON DAVIS, Appellant

v.

THE STATE OF TEXAS

ON DIRECT APPEAL FROM CAUSE NO. D-1-DC-06-904119

IN THE 390TH DISTRICT COURT

TRAVIS COUNTY

Per Curiam.

O R D E R

The above-styled and numbered cause is pending before this Court as a result of appellant's capital murder conviction and resulting sentence of death in the 390th District Court of Travis County, Cause No. D-1-DC-06-904119, styled The State of Texas v. Selwyn Preston Davis. On March 19, 2008, this Court abated the appeal on its own motion and ordered the trial court to address with appellant certain matters regarding his direct appeal and his right to pursue habeas relief.

With regard to his direct appeal, the court explained to appellant that, in a case in which the death penalty has been assessed, direct appeal is automatic and cannot be waived. See Tex. Code Crim. Proc. Art. 37.071 § 2(h). In light of this, appellant chose to continue with appointed counsel on direct appeal. Thus, we shall now reset the due date for appellant's brief on direct appeal. Appellant's brief is due in this Court on or before the 30th day after the date this order issues.

With regard to his right to file an application for writ of habeas corpus, applicant has steadfastly maintained that he wants to waive this right. As we noted in Ex parte Reynoso, S.W.3d , No. AP-75,963, slip op. p. 8, n.2 (Tex. Crim. App. July 2, 2008), Texas Code of Criminal Procedure Article 11.071 does not expressly provide that an applicant can waive his right to pursue habeas relief. However, neither does the statute provide for automatic habeas review. Id.; compare Art. 37.071 § 2(h)(providing for an automatic review of a death case on direct appeal). Thus, we implicitly held that an applicant may "waive" his right to habeas review, but that "waiver" is not truly effective until after the date on which the application is due in the trial court has passed. See Ex parte Reynoso, slip op. p. 8, n.2. Accordingly, the trial court is still charged with notifying this Court within ten days after the Article 11.071 statutory due date for the application has passed should no application be filed by applicant or on his behalf. See id.

IT IS SO ORDERED THIS THE 29TH DAY OF OCTOBER, 2008.

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