Dominguez, Ex Parte Jose Ybarra

• Court: Court of Criminal Appeals of Texas
• Decided: July 28, 2004
• Docket: AP-74,975
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. 74,975 EX PARTE JOSE YBARRA DOMINGUEZ, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

FROM PECOS COUNTY

Per Curiam.

O P I N I O N

This is a post-conviction application for a writ of habeas corpus forwarded to this Court pursuant to Tex. Code Crim. Proc. art. 11.07. Applicant was convicted of the felony offense of capital murder, and punishment was assessed at life imprisonment. Applicant appealed, and his conviction was affirmed. Dominguez v. State, No. 08-98-00224-CR (Tex. App. -- El Paso, delivered July 19, 2001, no pet.).

Applicant contends that he was denied an opportunity to file a petition for discretionary review because his appellate attorney did not timely notify him that his conviction had been affirmed or that he could seek discretionary review. The trial court, based upon an affidavit from appellate counsel, recommended that relief be granted. The record supports that recommendation.

Habeas corpus relief is granted, and Applicant is granted leave to file an out-of-time petition for discretionary review from his conviction in cause number 2032-A from the 112th Judicial District Court of Pecos County. Applicant is ordered returned to the point at which he can file a meaningful petition for discretionary review. 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 of the date the mandate of this Court has issued.

DELIVERED: July 28, 2004

DO NOT PUBLISH