IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
FROM BRAZORIA COUNTY
Per Curiam.
O P I N I O N
This is a post-conviction application for a writ of habeas corpus forwarded to this Court pursuant to Tex. Code Crim. Proc. art. 11.07. Applicant was convicted of murder and sentenced to life imprisonment. Applicant filed a timely notice of appeal and counsel was appointed to represent Applicant on appeal. Applicant's conviction was affirmed by the Thirteenth Court of Appeals on May 28, 1998. Womack v. State, No. 13-97-00397 (Tex. App. - Corpus Christi 1998).
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 he could seek discretionary review of the appellate court's decision, pro se. Counsel is required to specifically and timely notify an applicant that he can file pro se petitions for discretionary review in the Court of Criminal Appeals. Ex parte Wilson, 956 S.W.2d 25 (Tex. Crim. App.1997).
The trial court found that Applicant's request for an out-of-time Petition for Discretionary Review was barred by the doctrine of laches. The trial court concluded that the State would be prejudiced in its ability to respond to Applicant's petition, noting Applicant's six-year delay in seeking relief and the loss of records and recollection of events by Applicant's counsel, the only relevant witness. Counsel supplied an affidavit in response to the trial court's Order Designating Issues stating, inter alia, that although it would have been her usual practice to advise a client of his right to file a pro se Petition for Discretionary Review and the applicable rules and deadlines, she was unable to locate her case file, she had no independent recollection of the case, and she was no longer in private practice. The trial court recommended denying relief. We disagree.
To establish laches, the State must establish the following: (1) make a particularized showing of prejudice, (2) show that the prejudice was caused by the petitioner having filed a late petition, and (3) show that the petitioner has not acted with reasonable diligence as a matter of law. Ex parte Carrio, 992 S.W.2d 486 (Tex. Crim. App. 1999). In this case, the State failed to either plead laches or make a particularized showing of prejudice, as it is required to under Carrio.
Habeas corpus relief is granted, in part, and Applicant is granted leave to file an out-of-time petition for discretionary review from his conviction in cause number 31,865-A in the 23rd Judicial District Court of Brazoria County, Texas. Applicant is ordered returned to the point at which he can file a meaningful petition for discretionary review. 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 of the date the mandate of this Court has issued.
DELIVERED: October 13, 2004
DO NOT PUBLISH