Lafayette, Ex Parte Arthur Jr.

• Court: Court of Criminal Appeals of Texas
• Decided: March 1, 2006
• Docket: AP-75,347
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. AP-75,347 EX PARTE ARTHUR LAFAYETTE, JR., Applicant

ON APPLICATIONS FOR WRIT OF HABEAS CORPUS

IN CAUSE NUMBER 02F0412-202 IN THE 202ND

DISTRICT COURT OF BOWIE COUNTY

Per curiam.

O P I N I O N

Applicant was convicted of family violence assault, repeat offense, and punishment, enhanced by a prior conviction, was assessed at confinement for twenty years. This conviction was affirmed. Lafayette v. State, No. 06-02-213-CR, (Tex.App. - Texarkana, delivered December 9, 2003, no pet.).

Applicant contends that he was denied an opportunity to file a petition for discretionary review because his appellate attorney did not 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 mailed Applicant timely notice that his appeal had been affirmed, but failed to advise him that he could file a petition for discretionary review. The trial court has recommended that Applicant be granted 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.

DELIVERED: March 1, 2006

DO NOT PUBLISH