New, James Marshall v. Texas, the State Of ( 1999 )

FILED IN
COURT OF APPEALS
USA ROMBOK, Clerk
IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. 73.437
EX PARTE JAMES M. NEW, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
FROM DALLAS COUNTY
The opinion was delivered per curiam.
OPINION
This is a post-conviction application for a writ of habeas corpus filed
pursuant to Article 11.07, V.A.C.C.P. Applicant was convicted of four counts
of aggravated sexual assault and his punishment was assessed at sixty years
imprisonment after deferred adjudication probation was revoked. These
convictions were affirmed, New v. State, Nos. 05-91-1923-CRJD^91-J924;.CB,
NEW- 2
05-91-1925-CR, and 05-91-1926-CR, (Tex.App. - Dallas, delivered August 23,
1996, no pet.).
Applicant contends, inter alia, that he was denied an opportunity to file a
petition for discretionary review because his appellate attorney did not notify him
that the conviction had been affirmed or what he needed to do to file such a
petition. The trial court has conducted a hearing and recommended that
Applicant be granted an opportunity to file an out-of-time petition for
discretionary review, finding counsel failed to notify applicant that his appeal had
been affirmed and he could file a pro se petition for discretionary review.
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 can 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. All other requested relief is denied.
NEW- 3
DELIVERED: June 23, 1999
DO NOT PUBLISH
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CLERK 5TH COURT OF APPEALS
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