Sandoval, Ex Parte Oscar ( 2007 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. AP-75,786

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EX PARTE OSCAR SANDOVAL, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 1997CR1652-W1 IN THE 226TH DISTRICT COURT FROM BEXAR COUNTY

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   Per curiam. Keller, P.J., Meyers, J., and Cochran, J., dissent.

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 capital murder and sentenced to life imprisonment. The Fourth Court of Appeals affirmed his conviction. Sandoval v. State, No. 04-97-000720-CR (Tex. App. - San Antonio, February 10, 1999, no pet.).

Applicant contends that his appellate counsel rendered ineffective assistance because counsel failed to advise Applicant that he could file a pro se petition for discretionary review.

Appellate counsel filed an affidavit with the trial court. Based on that affidavit, the trial court finds that Applicant's claim is barred by laches. However, the record does not support this finding. Ex parte Carrio, 992 S.W.2d 486, 488 (Tex. Crim. App. 1999). The record reflects that Applicant was not advised that he could file a pro se petition for discretionary review. 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 Fourth Court of Appeals in Cause No. 04-97-000720-CR that affirmed his conviction in Case No. 1997CR1652 from the 226th Judicial District Court of Bexar County. Ex parte Wilson, 956 S.W.2d 25 (Tex. Crim. App. 1997). Applicant shall file his petition for discretionary review with the Fourth Court of Appeals within 30 days of the date on which this Court's mandate issues.

Delivered: October 17, 2007

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