Hernandez, Ex Parte Manuel

• Court: Court of Criminal Appeals of Texas
• Decided: April 23, 2008
• Docket: AP-75,900
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. AP-75,900

EX PARTE MANUEL HERNANDEZ, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. D-30,188-A IN THE 358 TH JUDICIAL DISTRICT COURT FROM ECTOR 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 aggravated sexual

assault of a child and sentenced to life imprisonment. The Eleventh Court of Appeals affirmed his

conviction. Hernandez v. State, No. 11-04-00175-CR (Tex. App. – Eastland, April 6, 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. We remanded this application to the trial court for findings of fact and conclusions of law.

The trial court has entered findings of fact and conclusions of law finding that appellate

counsel did not send notification of the disposition of the direct appeal and of Applicant’s right to

file a pro se petition for discretionary review until after the deadline for filing a petition for

discretionary review had passed. The trial court finds that the untimely transmission was not

intentional, but due to mischance. 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 Eleventh

Court of Appeals in Cause No. 11-04-00175-CR that affirmed his conviction in Case No. D-30,188-

A from the 358th Judicial District Court of Ector County. Applicant shall file his petition for

discretionary review with the Eleventh Court of Appeals within 30 days of the date on which this

Court’s mandate issues.

Delivered: April 23, 2008 Do not publish