Maldonado, Ex Parte Hector

• Court: Court of Criminal Appeals of Texas
• Decided: March 21, 2007
• Docket: AP-75,646
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. AP-75,646 EX PARTE HECTOR MALDONADO, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 4025-A IN THE 109^TH JUDICIAL DISTRICT COURT

FROM ANDREWS COUNTY

Per curiam.

O P I N I O N

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 two counts of indecency with a child and sentenced to five years' imprisonment on one count, and ten years' imprisonment on count two, to be served consecutively. The Eighth Court of Appeals affirmed his conviction. Maldonado v. State, No. 08-02-00469-CR (Tex. App. - El Paso, June 25, 2004).

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 appointed counsel and held an evidentiary hearing. Based on the record and the testimony and exhibits presented during the evidentiary hearing, the trial court has entered findings of fact and conclusions of law. The trial court finds that there is no evidence that Applicant was timely notified that his conviction had been affirmed or that he had a right to petition for discretionary review pro se. The trial court also finds that Applicant's failure to timely file a petition for discretionary review was not the result of neglect or conscious indifference by Applicant, and that he desires to file such a petition. The trial court recommends that relief be granted. Ex parte Riley, 193 S.W.3d 900 (Tex. Crim. App. 2006).

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 Eighth Court of Appeals in Cause No. 08-02-00469-CR that affirmed his conviction in Case No. 4025-A from the 109th Judicial District Court of Andrews County. Applicant shall file his petition for discretionary review with the Eighth Court of Appeals within 30 days of the date on which this Court's mandate issues.

Delivered: March 21, 2006

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