Carbajal, Ex Parte Dionicio ( 2007 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. AP-75,658

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EX PARTE DIONICIO CARBAJAL, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. S-04-3071-CR IN THE 156th DISTRICT COURT FROM SAN PATRICIO 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 two counts of indecency with a child, three counts of aggravated sexual assault of a child, and two counts of sexual assault of a child. The jury assessed twenty year sentences on all the second degree offenses and ninety-nine year sentences on all the first degree offenses. The Thirteenth Court of Appeals affirmed his conviction. Carbajal v. State, No. 13-04-00429-CR (Tex. App.-Corpus Christi, delivered August 30, 2005, no pet.).

Applicant contends that his appellate counsel rendered ineffective assistance because counsel failed to timely notify Applicant that his conviction had been affirmed.

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 his conviction had been affirmed. 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. 13-04-00429-CR that affirmed his conviction in Case No. S-04-3071-CR from the 156th Judicial District Court of San Patricio County. Applicant shall file his petition for discretionary review with the Thirteenth Court of Appeals within 30 days of the date on which this Court's mandate issues.

Delivered: April 18, 2007

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