Hernandez, Ex Parte Javier

• Court: Court of Criminal Appeals of Texas
• Decided: November 14, 2012
• Docket: AP-76,920
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. AP-76,920

EX PARTE JAVIER HERNANDEZ, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 1054441 IN THE 178TH DISTRICT COURT FROM HARRIS 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 a writ of habeas corpus. Ex parte

Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of delivery of

cocaine and sentenced to thirty-five years’ imprisonment. The First Court of Appeals affirmed his

conviction. Hernandez v. State, No. 01-07-00092-CR (Tex. App.–Houston [1st] March 13, 2008).

Applicant contends that his appellate counsel rendered ineffective assistance because counsel

failed to timely notify Applicant of his right to file a pro se petition for discretionary review.

Appellate counsel filed an affidavit with the trial court. Based on that affidavit, the trial court

has entered findings of fact and conclusions of law that appellate counsel failed to timely notify 2

Applicant of his right to file a pro se petition for discretionary review. 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 First Court of Appeals in Cause No. 01-07-00092-CR

that affirmed his conviction in Cause No. 1054441 from the 178th District Court of Harris County.

Applicant shall file his petition for discretionary review with this Court within 30 days of the date

on which this Court’s mandate issues. Applicant’s remaining claims are dismissed. Ex Parte

Torres, 943 S.W.2d 469 (Tex. Crim. App. 1997).

Delivered: November 14, 2012 Do not publish