Cantu, John Edward ( 2019 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-89,346-01
EX PARTE JOHN EDWARD CANTU, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. A-04-1023-S-W-1 IN THE 51st DISTRICT COURT
FROM TOM GREEN COUNTY
Per curiam.
ORDER
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 possession of a
controlled substance with intent to deliver and sentenced to forty years’ imprisonment. The Third
Court of Appeals affirmed his conviction. Cantu v. State, No. 03-05-00660-CR (Tex. App.—Austin
July 28, 2006) (not designated for publication).
After a review of the record, we agree with the trial court’s recommendation to deny relief
in Applicant’s ground one. However, we disagree with the trial court’s recommendation to grant
Applicant an out-of-time petition for discretionary review in ground two. Mandate in this case
2
issued on December 14, 2006, and Applicant waited over eleven and a half years before filing this
habeas corpus application with the district clerk. In order to be entitled to relief in an out-of-time
petition for discretionary review claim, an applicant must show that, absent counsel’s conduct, he
would have timely filed a petition for discretionary review. Ex parte Crow, 180 S.W.3d 135, 138
(Tex. Crim. App. 2005). Given the extreme delay in this case, any contention on Applicant’s part
that, but for counsel’s errors, he would have timely filed a petition for discretionary review is not
credible and we deny relief.1
Filed: March 6, 2019
Do not publish
1
The Court has long recognized that delay on the applicant’s part can prejudice his
credibility. Ex parte Young, 479 S.W.2d 45, 46 (Tex. Crim. App. 1972).