IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
CAUSE NO. D-30,188-A IN THE 358TH JUDICIAL DISTRICT COURT
FROM ECTOR 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 aggravated sexual assault of a child and sentenced to life imprisonment. The Eleventh Court of Appeals affirmed his conviction. Hernandez v. State, No. 11-04-00175-CR (Tex. App. - Eastland, April 6, 2006).
Applicant contends that his appellate counsel rendered ineffective assistance because counsel failed to timely notify Applicant that his conviction had been affirmed and failed to advise him of his right to petition for discretionary review pro se. We remanded this application to the trial court for findings of fact and conclusions of law.
The trial court has entered findings of fact and conclusions of law finding that appellate counsel did not send notification of the disposition of the direct appeal and of Applicant's right to file a pro se petition for discretionary review until after the deadline for filing a petition for discretionary review had passed. The trial court finds that the untimely transmission was not intentional, but due to mischance. The trial court recommends that relief be granted. 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 Eleventh Court of Appeals in Cause No. 11-04-00175-CR that affirmed his conviction in Case No. D-30,188-A from the 358th Judicial District Court of Ector County. Applicant shall file his petition for discretionary review with the Eleventh Court of Appeals within 30 days of the date on which this Court's mandate issues.
Delivered: April 23, 2008
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