Beltran, Ex Parte Michael ( 2008 )

  IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

---

  NO. AP-75,993  

---

EX PARTE MICHAEL BELTRAN, Applicant

---

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 27599-A IN THE 3RD DISTRICT COURT

FROM ANDERSON COUNTY

---

           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 assault on a public servant with a deadly weapon and sentenced to life imprisonment. The Twelfth Court of Appeals affirmed his conviction. Beltran v. State, No. 12-06-00390-CR (Tex. App. – Tyler, November 30, 2007).

            Applicant contends that his appellate counsel rendered ineffective assistance because counsel, who had been retained to file a petition for discretionary review, failed to timely file one. We remanded this application to the trial court for findings of fact and conclusions of law.

            Appellate counsel filed affidavits with the trial court. Based on those affidavits, the trial court has entered findings of fact and conclusions of law that appellate counsel had been retained by Applicant to file a petition for discretionary review but failed to timely file one. 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 Twelfth Court of Appeals in Cause No. 12-06-00390-CR that affirmed his conviction in Case No. 27,599 from the 3rd Judicial District Court of Anderson County. Applicant shall file his petition for discretionary review with the Twelfth Court of Appeals within 30 days of the date on which this Court’s mandate issues.

Filed: September 10, 2008

Do not publish