Banda, Ex Parte Luis Alberto

• Court: Court of Criminal Appeals of Texas
• Decided: June 30, 2004
• Docket: AP-74,971
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. 74,971 EX PARTE LUIS ALBERTO BANDA, Applicant

ON APPLICATION FOR WRIT OF HABEAS CORPUS

FROM DALLAS COUNTY

Per Curiam.

O P I N I O N

This is a post-conviction application for a writ of habeas corpus filed pursuant to Article 11.07, V.A.C.C.P. Applicant was convicted of murder and his punishment was assessed at sixty years imprisonment. This conviction was affirmed, Banda v. State, No. 05-01-00825-CR (Tex. App. -- Dallas, delivered March 18, 2001, no pet.).

Applicant contends that he was denied an opportunity to file a petition for discretionary review based on counsel's failure to timely file his petition for discretionary review. The trial court finds that Applicant is entitled to relief to the extent that he be allowed an opportunity to file a petition for discretionary review. Therefore, Applicant is entitled to relief. Ex parte Wilson, 956 S.W.2d 25 (Tex. Crim. App. 1997).

The proper remedy in a case such as this is to return Applicant to the point at which he can file a petition for discretionary review. He may then follow the proper procedures in order that a meaningful petition for discretionary review may be filed. For purposes of the Texas Rules of Appellate Procedure, all time limits shall be calculated as if the Court of Appeals' decision had been rendered on the day the mandate of this Court issues. We hold that should Applicant desire to seek discretionary review, he must take affirmative steps to see that his petition is filed in the Court of Appeals within thirty days after the mandate of this Court has issued.

DELIVERED: June 30, 2004

DO NOT PUBLISH