Diaz, Ex Parte Maria Elena ( 2007 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. AP-75,788

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EX PARTE MARIA ELENA DIAZ, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 93-CRF-553-A IN THE 105^TH JUDICIAL DISTRICT COURT FROM KLEBERG COUNTY

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   Per curiam.

O P I N I O N  

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 writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of aggravated possession of marihuana and sentenced to fourteen years' imprisonment. The Thirteenth Court of Appeals affirmed her conviction. Diaz v. State, No. 13-94-146-CR (Tex. App. - Corpus Christi, delivered August 10, 1995, no pet.)

Applicant contends that her appellate counsel rendered ineffective assistance because counsel failed to timely notify Applicant that her conviction had been affirmed and failed to advise her of her right to petition for discretionary review pro se. We remanded this application to the trial court for findings of fact and conclusions of law.

Appellate counsel filed an affidavit with the trial court. Based on that affidavit, the trial court has entered findings of fact and conclusions of law that appellate counsel failed to timely notify Applicant that her conviction had been affirmed and failed to advise her of her right to petition for discretionary appeal pro se. The trial court recommends that relief be granted. Ex parte Wilson, 956 S.W.2d 25 (Tex. Crim. App. 1997). We find, therefore, that Applicant is entitled to the opportunity to file an out-of-time petition for discretionary review of the judgment of the Thirteenth Court of Appeals in Cause No. 13-94-146-CR that affirmed her conviction in Case No. 93-CRF-553-A from the 105th Judicial District Court of Kleberg County. Applicant shall file her petition for discretionary review with the Thirteenth Court of Appeals within 30 days of the date on which this Court's mandate issues.

Delivered: November 7, 2007

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