New, James Marshall v. Texas, the State Of

• Court: Court of Appeals of Texas
• Decided: June 23, 1999
• Docket: 05-91-01923-CR
• Status: Published

Opinion

FILED IN COURT OF APPEALS

USA ROMBOK, Clerk

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

NO. 73.437

EX PARTE JAMES M. NEW, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS FROM DALLAS COUNTY

The opinion was delivered per curiam.

OPINION

This is a post-conviction application for a writ of habeas corpus filed

pursuant to Article 11.07, V.A.C.C.P. Applicant was convicted of four counts

of aggravated sexual assault and his punishment was assessed at sixty years

imprisonment after deferred adjudication probation was revoked. These

convictions were affirmed, New v. State, Nos. 05-91-1923-CRJD^91-J924;.CB, NEW- 2

05-91-1925-CR, and 05-91-1926-CR, (Tex.App. - Dallas, delivered August 23,

1996, 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 notify him

that the conviction had been affirmed or what he needed to do to file such a

petition. The trial court has conducted a hearing and recommended that

Applicant be granted an opportunity to file an out-of-time petition for

discretionary review, finding counsel failed to notify applicant that his appeal had

been affirmed and he could file a pro se 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. All other requested relief is denied. NEW- 3

DELIVERED: June 23, 1999 DO NOT PUBLISH ;:| li.S.'PliilA'-'i j; •.•f a j'>23":3 }*'/ •\:oc Court of Criminal Appeals! $ox 12308 LISA ROMBOK CLERK 5TH COURT OF APPEALS Capitol Station COURTHOUSE 600 COMMERCE 2ND FLOOR &ugtm,Gi;exaS787U DALLAS TX 752 02 73,437 iii„.«ia.i.a.i\«-w»«ai«ii«««»««*«« imbhimUlHiuuWifiHi! IStQZ-itMtP*