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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS


NO. AP-75,804

EX PARTE NOLAN HARRELL WEBB, Applicant


ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 3612

IN THE 299th JUDICIAL DISTRICT COURT

FROM TRAVIS COUNTY

Per curiam.



ORDER


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 murder and sentenced to fifty years' imprisonment. The Court of Appeals affirmed his conviction. Webb v. State, No. 03-00-00613-CR (Tex. App.-Austin, delivered November 29, 2001).

This Court granted Applicant an out-of-time petition for discretionary review (PDR). Ex Parte Webb, No. AP-75, 380 (Tex. Crim. App., delivered April 12, 2006). Applicant timely filed his out-of-time PDR, which was refused by this Court on September 27, 2006.

Applicant filed this writ of habeas corpus to challenge his conviction on the grounds of prosecutorial misconduct. This Court has found an issue that needs to be addressed before we can determine whether or not to proceed with Applicant's habeas application on the merits. We order that this application be filed and set for submission to determine whether a conviction is final for article 11.07 habeas corpus purposes when the right to file an out-of- time PDR has been granted, such a PDR has been filed but refused by this Court, and the court of appeals neither withdrew the original mandate nor issued a new one after the out-of-time PDR was refused. (1) The parties shall brief this issue. Oral argument is permitted.

If the trial court finds that Applicant is indigent, the trial court will, pursuant to the provisions of Tex. Code Crim. Proc. art. 26.04, appoint an attorney to represent him. If the trial court finds that Applicant is not indigent, Applicant shall be given the opportunity to retain counsel within 15 days of the trial court's finding. Any hearing conducted pursuant to this order shall be held within 30 days of this order. Applicant's brief shall be filed with this Court within 30 days of the date of this order. The State's response shall be filed within 30 days after the filing of Applicant's brief.


Filed: December 12, 2007

Do not publish

1. A criminal case is not final until the court of appeals issues its mandate, and this Court dismisses any 11.07 applications that are filed prior to the mandate being issued. Ex Parte Johnson, 12 S.W.3d 472 (Tex. Crim. App. 2000); Ex Parte Brown, 662 S.W.2d 3 (Tex. Crim. App. 1983).