IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
CAUSE NO. 317244A IN THE 8TH DISTRICT COURT
FROM HOPKINS COUNTY
O P I N I O N
Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the clerk of the trial court transmitted to this Court this application for writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of sexual assault and sentenced to life imprisonment after Applicant was found to be a habitual offender. The Seventh Court of Appeals affirmed his conviction. Dorch v. State, No. 07-04-380-CR (Tex. App. - Amarillo, delivered November 22, 2006, no pet.).
Applicant contends that his appellate counsel rendered ineffective assistance because counsel failed to timely notify Applicant that he could file a pro se petition for discretionary review. We remanded this application to the trial court for findings of fact and conclusions of law.
Appellate counsel filed an affidavit with the trial court, stating that six days after the appellate opinion was delivered he mailed a copy of it to Applicant along with a copy of a timetable for criminal appeals to a court of appeals, highlighting a reference to the deadline for filing a motion for rehearing. Counsel makes no reference to advising Applicant that he could file a petition for discretionary review pro se. The trial court entered findings of fact that counsel's affidavit was true. Appellate counsel has a duty to notify an appellant that he may file a pro se petition for discretionary review, and merely notifying him that his conviction was affirmed and that he can file a motion for rehearing is insufficient. See Ex parte Wilson, 956 S.W.2d 25 (Tex. Crim. App. 1997). We find, therefore, that Applicant is entitled to the opportunity to file an out-of-time petition for discretionary review of the judgment of the Seventh Court of Appeals in Cause No. 07-04-380-CR that affirmed his conviction in Case No. 317244 from the 8th Judicial District Court of Hopkins County. Applicant shall file his petition for discretionary review with the Seventh Court of Appeals within 30 days of the date on which this Court's mandate issues.
Delivered: September 12, 2007
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