De La Rosa, Ex Parte Javier

• Court: Court of Criminal Appeals of Texas
• Decided: September 16, 2009
• Docket: AP-76,221
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

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NO. AP-76,221

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EX PARTE JAVIER DE LA ROSA, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 04-CR-09-A IN THE 381ST DISTRICT COURT

FROM STARR COUNTY

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           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 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 40 years’ imprisonment. The Fourth Court of Appeals affirmed his conviction. De La Rosa v. State, No. 04-04-00921-CR (Tex. App. – San Antonio, 2006, no pet.) (not designated for publication).

            Applicant contends that his due process rights were violated because he was denied his right to petition for discretionary review, pro se.

            The trial court has entered findings of fact and conclusions of law recommending that relief be granted. We agree. The record shows that Applicant was deprived of his right to file a petition for discretionary review, pro se. Ex parte Riley, 193 S.W.3d 900 (Tex. Crim. App. 2006). 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 Fourth Court of Appeals in Cause No. No. 04-04-00921-CR that affirmed his conviction in Case No. 04-CR-09-A from the 381st Judicial District Court of Starr County. Applicant shall file his petition for discretionary review with the Fourth Court of Appeals within 30 days of the date on which this Court’s mandate issues.

Delivered: September 16, 2009

Do not publish