Diaz, Ex Parte Yoni R.

• Court: Court of Criminal Appeals of Texas
• Decided: April 28, 2010
• Docket: AP-76,329
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. AP-76,329

EX PARTE YONI R. DIAZ, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. W04-53125-Q(A) IN THE 204TH DISTRICT COURT FROM DALLAS COUNTY

Per curiam.

OPINION

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 life imprisonment. The Fifth Court of Appeals affirmed his conviction. Diaz v. State,

No. 05-05-00975-CR (Tex. App.–Dallas, delivered October 18, 2006).

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. 2

Applicant’s conviction was affirmed on October 18, 2006. Contained within the habeas

corpus record is an affidavit from an Open Records Coordinator at the Texas Department of Criminal

Justice which indicates that Applicant did not receive any certified, special or legal mail during the

months of October 2006 and November 2006. The trial court found this affidavit to be credible.

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 review 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 Fifth Court of Appeals in Cause No. 05-05-00975-CR that affirmed his conviction

in Case No. W04-53125-Q(A) from the 204th Judicial District Court of Dallas County. Applicant

shall file his petition for discretionary review with the Fifth Court of Appeals within 30 days of the

date on which this Court’s mandate issues.

Delivered: April 28, 2010 Do not publish