Rosales, Ex Parte Adrian

• Court: Court of Criminal Appeals of Texas
• Decided: October 22, 2003
• Docket: AP-74,810
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. 74,810

EX PARTE ADRIAN ROSALES, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

FROM BEXAR COUNTY

Per Curiam.

O P I N I O N

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 aggravated kidnapping and his punishment was assessed at sixty-five years imprisonment and a fine of $10,000. This conviction was affirmed, Rosales v. State, No. 04-00-750-CR (Tex.App. - San Antonio, delivered January 16, 2002, no pet.).

Applicant contends 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. The trial court has found that Applicant did not receive timely notice of his affirmance and right to file a pro se petition for discretionary review, and recommended that Applicant be granted an opportunity to file an out-of-time petition for discretionary review even though counsel was not at fault.

Applicant is entitled to relief. See 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: October 22, 2003

DO NOT PUBLISH

Hervey, J., not participating