Escobedo, Ex Parte Robert

• Court: Court of Criminal Appeals of Texas
• Decided: January 12, 2005
• Docket: AP-75,063
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. AP-75,063 EX PARTE ROBERT ESCOBEDO, Applicant

ON APPLICATION FOR WRIT OF HABEAS CORPUS

FROM BEXAR 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 aggravated sexual assault and his punishment was assessed at twenty years imprisonment. This conviction was affirmed, Escobedo v. State, No. 04-98-00355-CR (Tex. App. -- San Antonio, delivered May 19, 1999).

Applicant contends that he was denied an opportunity to file a petition for discretionary review because his attorney did not timely notify him that the conviction had been affirmed. The trial court finds that Applicant's attorney on appeal has no record in his file of having sent notice to Applicant of his opportunity to prepare and file a petition for discretionary review. The trial court recommends that we grant relief. 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: JANUARY 12, 2005

DO NOT PUBLISH