Baiza, Ex Parte Dino

• Court: Court of Criminal Appeals of Texas
• Decided: February 14, 2007
• Docket: AP-75,615
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. AP-75,615 EX PARTE DINO BAIZA, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. CR97-247-1 IN THE 22ND JUDICIAL DISTRICT COURT

FROM COMAL COUNTY

Per curiam.

O P I N I O N

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 aggravated robbery and sentenced to seventy-seven years' imprisonment. The Third Court of Appeals affirmed his conviction. Baiza v. State, No. 03-99-00082-CR (Tex. App.-Austin Oct. 7, 1999, no pet.).

Applicant contends that his appellate counsel rendered ineffective assistance because counsel failed to timely notify Applicant that his conviction had been affirmed and failed to advise him of his right to petition for discretionary review pro se. We remanded this application to the trial court for findings of fact and conclusions of law.

Appellate counsel filed an affidavit with the trial court. Based on that affidavit, the trial court has entered findings of fact and conclusions of law that appellate counsel failed to timely notify Applicant that his conviction had been affirmed and failed to advise him of his right to petition for discretionary appeal pro se. The trial court recommends that relief be granted. Ex parte Wilson, 956 S.W.2d 25 (Tex. Crim. App. 1997). We find, therefore, that Applicant is entitled to the opportunity to file an out-of-time petition for discretionary review of the judgment of the Third Court of Appeals in Cause No. 03-99-00082-CR that affirmed his conviction in Case No. CR97-247 from the 22nd Judicial District Court of Comal County. Applicant shall file his petition for discretionary review with the Third Court of Appeals within 30 days of the date on which this Court's mandate issues.

Delivered: February 14, 2007

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