Samaniego, Ex Parte Rodney ( 2005 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. AP-75,239

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EX PARTE RODNEY SAMANIEGO, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NUMBER B-00-0998-S IN THE 119TH JUDICIAL DISTRICT COURT

TOM GREEN COUNTY

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Per curiam.   O P I N I O N  

This is a post-conviction application for a writ of habeas corpus forwarded to this Court pursuant to Tex. Code Crim. Proc. art. 11.07. Applicant was convicted of the felony offense of delivery of a controlled substance, and punishment was assessed at confinement for forty-three years. Applicant appealed, and his conviction was affirmed. Samaniego v. State, No. 03-01-00718-CR (Tex. App. -- Austin, delivered July 26, 2002, no pet.).

Applicant contends that he was denied an opportunity to file a petition for discretionary review because his appellate attorney did not inform him that he could seek discretionary review pro se. The trial court, based upon an affidavit from appellate counsel, recommended that relief be granted. The record reflects that counsel did not inform Applicant that he could file a petition for discretionary review from his conviction.

Habeas corpus relief is granted and Applicant is granted leave to file an out-of-time petition for discretionary review from his conviction in cause number B-00-0998-S from the 119th Judicial District Court of Tom Green County. Applicant is ordered returned to the point at which he can file a meaningful petition for discretionary review. 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 of the date the mandate of this Court has issued.

DELIVERED: September 14, 2005

DO NOT PUBLISH