West, Ex Parte Howard Earl Jr. ( 2006 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. AP-75,339

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EX PARTE HOWARD EARL WEST, JR., Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS IN CAUSE NUMBER CR-994-96-G IN THE 92ND DISTRICT COURT OF HIDALGO COUNTY

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   Per curiam.



O P I N I O N  

Applicant was convicted of attempted capital murder and punishment was assessed at confinement for twenty-five years. This conviction was affirmed. West v. State, No. 13-98-654-CR (Tex.App. - Corpus Christi, delivered August 17, 2000, no pet.).

Applicant contends 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 that he could file such a petition. An affidavit filed by appellate counsel states that counsel cannot find his file for Applicant and has no record that any notice of the affirmance was sent to Applicant. The trial court has recommended that Applicant be granted an opportunity to file an out-of-time 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.

DELIVERED: February 15, 2006

DO NOT PUBLISH

Cochran, J., dissents