Torres, Ex Parte Juan Antonio

• Court: Court of Criminal Appeals of Texas
• Decided: October 20, 2004
• Docket: AP-75,030
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. 75,030 EX PARTE JUAN ANTONIO TORRES, Applicant ON APPLICATION FOR WRIT OF HABEAS CORPUS

FROM BEXAR COUNTY

Per Curiam.

O P I N I O N

This is an application for a writ of habeas corpus which was transmitted to this Court by the clerk of the trial court pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of aggravated robbery with a deadly weapon and sentenced to forty years imprisonment. His conviction was affirmed by the Fourth Court of Appeals in an unpublished opinion on July 23, 2002. Torres v. State, No. 04-02-00540-CR (Tex. App. -- San Antonio 2002, no pet.).

Applicant contends that his appellate counsel rendered ineffective assistance because he failed to ensure that Applicant received timely notice of the Fourth Court of Appeals' denial of his motion for rehearing. As a result, Applicant claims that he was denied the opportunity to file a petition for discretionary review.

After a review of the habeas record, the trial court has determined that Applicant is entitled to the opportunity to file an out-of-time petition for discretionary review due to counsel's failure to "assure that Applicant's ability to file a Petition for Discretionary Review was protected." We agree. Applicant is granted leave to file an out-of-time petition for discretionary review from the Court of Appeals' judgment in cause number 04-02-00540-CR affirming his conviction in cause number 2002-CR-1444 from the 175th Judicial District Court of Bexar County, Texas. Applicant shall file his petition for discretionary review with the Court of Appeals within thirty days of the issuance of this Court's mandate.

DELIVERED: OCTOBER 20, 2004

DO NOT PUBLISH