Cleary, Ex Parte Scott Allen

• Court: Court of Criminal Appeals of Texas
• Decided: March 16, 2005
• Docket: AP-75,115
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. AP-75,115 EX PARTE SCOTT ALLEN CLEARY, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 02-25862-R IN THE 265^th JUDICIAL DISTRICT COURT

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 tex. code crim. proc. art. 11.07. Applicant was convicted of aggravated sexual assault of a child. Punishment was assessed at confinement for forty years. This conviction was affirmed, Cleary v. State, No. 11-03-0051-CR (Tex. App.Eastland, delivered November 6, 2003, no pet.).

Applicant contends that he was denied an opportunity to file a pro se petition for discretionary review because his appellate attorney did not timely advise him of his right to pursue discretionary review. The record reflects that Applicant was not informed, in a timely manner, of his right to pursue a pro se petition for discretionary review.

In Ex parte Wilson, 956 S.W.2d 25 (Tex. Crim. App. 1997), we held that for counsel to render effective assistance on appeal, he, or she, must notify the client the case has been affirmed and that the client can pursue discretionary review on his own.

Applicant is entitled to relief. The proper remedy in a case like 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 in this cause 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.

Copies of this opinion shall be sent to the Texas Department of Criminal Justice, Correctional Institutions, and Parole Divisions.

DELIVERED: March 16, 2005

DO NOT PUBLISH