IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. AP-75,185
EX PARTE SIMON LEE RILEY
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
FROM TOM GREEN COUNTY
Cochran, J., filed a concurring opinion, in which Womack, J., joined.
O P I N I O N
I agree that applicant is entitled to habeas corpus relief and an opportunity to file an out-of-time petition for discretionary review. However, I think that applicant=s attorney was, in fact, constitutionally ineffective in failing to protect his client=s right to timely file a petition for discretionary review.
Rule 4.5 of the Texas Rules of Appellate Procedure (TRAP) sets out the procedure for obtaining additional time to file a petition for discretionary review when a party has not received timely notice of the decision by the court of appeals.
In the present case, the record shows that the Third Court of Appeals rendered its decision affirming applicant=s conviction on May 1, 2003. The court of appeals mailed a copy of that opinion to applicant=s appellate counsel on the same day. Applicant=s attorney apparently did not receive this notice. He did, however, learn about the court of appeals=s judgment from the district attorney on July 7, 2003. This was sixty-eight days after the judgment and opinion were filed.
Under TRAP 4.5(c), if a party or his attorney did not receive notice of the judgment or order of the court of appeals until after the time has expired for filing a petition for discretionary review, that party may file a motion with this Court requesting additional time in which to file such a petition. That motion must be filed within fifteen days of the date on which the party or his attorney received actual notice of the order Abut in no event more than 90 days after the date of the judgment or order.@ Tex. R. App. P. 4.5(b).
In this case, applicant=s attorney received actual notice of the appellate court=s judgment in ample time to (1) inform his client of the affirmance of his conviction; and (2) prepare an affidavit setting out the facts that he had not received a copy of the judgment, but did receive actual notice of the order sixty-eight days later; and (3) prepare a motion on applicant=s behalf to file pro se with this Court requesting an extension of time should applicant desire to file a pro se petition for discretionary review.
If this Court, upon receiving such a motion, finds that a party=s attorney did not timely receive notice or have actual knowledge of the judgment, then this Court must grant the motion for extension of time. TRAP 4.5(d). And that finding would have given applicant thirty days in which to file a pro se petition for discretionary review once his motion for additional time was granted. Id.
This rule is simple; it is clear; it has been the controlling law since 1997. I can think of no plausible reason or strategic rationale for applicant=s attorney=s failure to at least inform his client of TRAP 4.5 and explain its significance. Had he done so, applicant would not have wasted three years before obtaining his right to file a pro se petition for discretionary review.
I concur in the Court=s judgment.
Filed: June 7, 2006
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