Waldrup, Ex Parte Dewayne Lee

• Court: Court of Criminal Appeals of Texas
• Decided: February 16, 2005
• Docket: AP-75,097
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NOS. AP-75,097 & AP-75,098 EX PARTE DEWAYNE LEE WALDRUP, Applicant

ON APPLICATION FOR WRIT OF HABEAS CORPUS

FROM HARRIS 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 possession of a controlled substance and his punishment was assessed at five years imprisonment and fifteen years imprisonment. The convictions were affirmed, Waldrup v. State, Nos. 01-02-00140-CR; 01-02-00141-CR (Tex. App. -- Houston, delivered February 27, 2003).

Applicant contends that he was denied an opportunity to file a petition for discretionary review because his attorney did not timely notify him that the convictions had been affirmed. The trial court finds that Applicant was transferred within the Texas Department of Criminal Justice system before Applicant's attorney was able to notify him of the result of his appeal and the option of filing a petition for discretionary review. Therefore, Applicant is entitled to relief and Applicant is granted leave to file an out-of-time petition for discretionary review from his convictions in cause numbers 882444 and 882445 from the 228th Judicial District Court of Harris County. 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: February 16, 2005

DO NOT PUBLISH