IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
IN CAUSE NO. CR-0462-98-G FROM
THE 370TH DISTRICT COURT OF HIDALGO COUNTY
O P I N I O N
Appellant was convicted of aggravated robbery and attempted capital murder. Punishment was assessed at confinement for ninety-nine years. These convictions were affirmed. Gomez v. State, No. 13-99-189-CR (Tex.App. - Corpus Christi, delivered April 26, 2001, 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. An affidavit filed by appellate counsel states that counsel mailed notice of the affirmance to Applicant thirty-three days after the opinion was delivered. The trial court has recommended that Applicant be denied an opportunity to file an out-of-time petition for discretionary review because Applicant did not file a motion for extension to file such a petition. We do not agree.
Counsel's failure to mail notice to Applicant that his appeal had been affirmed until three days after the deadline for filing the petition denied Applicant a reasonable opportunity to file a petition or to seek an extension of time. 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 may 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: December 14, 2005
DO NOT PUBLISH