Hohn, Ex Parte Robert Rory

• Court: Court of Criminal Appeals of Texas
• Decided: January 25, 2006
• Docket: AP-75,321
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NOS. AP-75,321 & AP-75,322 EX PARTE ROBERT RORY HOHN, Applicant

ON APPLICATIONS FOR WRIT OF HABEAS CORPUS

IN CAUSE NUMBERS 21,294 & 21,365 IN THE 253RD

DISTRICT COURT OF LIBERTY COUNTY

Per curiam.

O P I N I O N

Applicant was convicted of two counts of aggravated sexual assault and punishment was assessed at confinement for fifty years. These convictions were affirmed. Hohn v. State, Nos. 09-96-214-CR & 09-96-215-CR (Tex.App. - Beaumont, delivered August 27, 1997, no pet.).

Applicant contends, inter alia, that he was denied an opportunity to file a petition for discretionary review because his appellate attorney did not timely notify him that the conviction had been affirmed or what he needed to do to file such a petition. An affidavit filed by appellate counsel states that counsel cannot specifically remember this case, but that the appeals were affirmed on August 27, 1997, and that counsel has a letter dated October 12, 1997, in which counsel advised Applicant that his appeals had been affirmed. The trial court has recommended that relief be denied because Applicant's delay of seven years prevents the State from showing whether Applicant received timely notice. However, that finding is not supported by the record because it is based on counsel's affidavit, which also shows that counsel sent notice of the affirmance to Applicant 45 days after the Beaumont Court of Appeals delivered the opinion in Applicant's appeals. A notice sent more than 30 days after the appellate opinion was delivered is not timely, and Applicant is entitled to an opportunity to file an out-of-time petition for discretionary review.

Therefore, Applicant is entitled to relief. Ex parte Wilson, 965 S.W.2d 25 (Tex.Cr.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.

Applicant's remaining claims are dismissed. See Ex parte Torres, 943 S.W.2d 469 (Tex. Crim. App. 1997).

DELIVERED: January 25, 2006

DO NOT PUBLISH

Cochran, J., dissents