Santiago, Jose J.

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS



NO. WR-80,408-02




EX PARTE JOSE J. SANTIAGO, Applicant




ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 1161112-A IN THE 248TH DISTRICT COURT

FROM HARRIS COUNTY




            Per curiam.


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 a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of aggravated robbery and sentenced to thirty-seven years’ imprisonment. The First Court of Appeals affirmed his conviction. Santiago v. State, No. 01-09-00723-CR (Tex. App. – Houston [1st Dist.] November 17, 2011).

            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 pro se for discretionary review.

            Appellate counsel filed an affidavit with the trial court. In addition, the mail room supervisor from TDCJ has filed an affidavit. Based on those affidavits, the trial court has entered findings of fact and conclusions of law, finding that Applicant was not aware that the court of appeals had affirmed his conviction until after the deadline for filing a petition for discretionary review had passed. See Ex parte Riley, 193 S.W.3d 900 (Tex. Crim. App. 2006). The appellate court docket does not show that the court of appeals received a letter certifying compliance with Rule 48.4 of the Texas Rules of Appellate Procedure.

            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 First Court of Appeals in Cause No. 01-09-00723-CR that affirmed his conviction in Cause No. 1161112 from the 248th District Court of Harris County. Applicant shall file his petition for discretionary review with this Court within 30 days of the date on which this Court’s mandate issues.

Delivered: April 30, 2014

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