Odneal, Ex Parte Shawn K. ( 2006 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. AP-75,336

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EX PARTE SHAWN K. ODNEAL, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS

FROM CAUSE NO. 80494 FROM THE CRIMINAL DISTRICT COURT OF JEFFERSON 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 pleaded guilty to the felony offense of aggravated sexual assault of a child, and punishment was assessed at life imprisonment. Applicant received an out-of-time appeal from this Court, but the court of appeals dismissed his appeal for lack of jurisdcition. Odneal v. State, No. 09-04-097-CR (Tex. App. -- Beaumont, delivered March 23, 2005, 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 timely notify him that his conviction had been affirmed or that he could seek discretionary review, pro se. The trial court recommended that relief be denied, because Applicant's appeal failed to invoke the jurisdiction of the court of appeals. However, a petition for discretionary review is the appropriate avenue to challenge the dismissal of a direct appeal. The record reflects that counsel did not timely inform Applicant that his conviction had been affirmed or that he could file a petition for discretionary review from his conviction.

Habeas corpus relief is granted, in part, and Applicant is granted leave to file an out-of-time petition for discretionary review from his conviction in cause number 80494 from the Criminal District Court of Jefferson County. Applicant is ordered returned to the point at which he can file a 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.

Applicant's remaining claims are dismissed. See Ex parte Torres, 943 S.W.2d 469 (Tex. Crim. App. 1997).

DELIVERED: FEBRUARY 8, 2005

DO NOT PUBLISH