Gallardo, Juan

• Court: Court of Criminal Appeals of Texas
• Decided: May 25, 2022
• Docket: WR-93,328-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-93,328-01

EX PARTE JUAN GALLARDO, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 2017-411,874-A IN THE 137TH DISTRICT COURT FROM LUBBOCK COUNTY

Per curiam.

OPINION

Applicant was convicted of murder and sentenced to life imprisonment. The Seventh Court

of Appeals affirmed his conviction. Gallardo v. State, 07-20-00011-CR (Tex. App.–Amarillo, Aug.

2, 2021). Applicant filed this application for a writ of habeas corpus in the county of conviction, and

the district clerk forwarded it to this Court. See TEX . CODE CRIM . PROC. art. 11.07.

Applicant contends that appellate counsel failed to timely notify him when his conviction was

affirmed. Therefore, Applicant lost the opportunity to file a PDR. Appellate counsel acknowledges

that he and Applicant had discussed Applicant’s desire to pursue post-conviction remedies, including

filing a PDR. However, when the appellate court affirmed the judgment in this case, counsel was out

of the office for protracted periods of time due to illness in his family. As a result, he failed to timely 2

inform Applicant when his conviction was affirmed on direct appeal. He recommends providing

Applicant with the opportunity to file an out-of-time PDR.

The trial court finds appellate counsel’s statements worthy of belief. The court concludes that

Applicant was not timely informed of the Court of Appeals’ decision affirming his conviction and

of his right to file a pro se petition for discretionary review from that decision. The court

recommends granting relief.

Relief is granted. Smith v. Robbins, 528 U.S. 259 (2000); Ex parte Miller, 330 S.W.3d 610

(Tex. Crim. App. 2009). Applicant may file an out-of-time PDR of the opinion of the Seventh Court

of Appeals in cause number 07-20-00011-CR that affirmed the judgment of conviction in cause

number 2017-411,874 from the 137th District Court of Lubbock County. Applicant shall file his

PDR with this Court within 30 days of the date on which this Court’s mandate issues.

Delivered: May 25, 2022 Do not publish