Hernandez, Ex Parte Manuel ( 2008 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. AP-75,900
EX PARTE MANUEL HERNANDEZ, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. D-30,188-A IN THE 358 TH JUDICIAL DISTRICT COURT
FROM ECTOR COUNTY
Per curiam.
OPINION
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 sexual
assault of a child and sentenced to life imprisonment. The Eleventh Court of Appeals affirmed his
conviction. Hernandez v. State, No. 11-04-00175-CR (Tex. App. – Eastland, April 6, 2006).
Applicant contends that his appellate counsel rendered ineffective assistance because counsel
failed to timely notify Applicant that his conviction had been affirmed and failed to advise him of
his right to petition for discretionary review pro se. We remanded this application to the trial court
for findings of fact and conclusions of law.
The trial court has entered findings of fact and conclusions of law finding that appellate
counsel did not send notification of the disposition of the direct appeal and of Applicant’s right to
file a pro se petition for discretionary review until after the deadline for filing a petition for
discretionary review had passed. The trial court finds that the untimely transmission was not
intentional, but due to mischance. 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 Eleventh
Court of Appeals in Cause No. 11-04-00175-CR that affirmed his conviction in Case No. D-30,188-
A from the 358th Judicial District Court of Ector County. Applicant shall file his petition for
discretionary review with the Eleventh Court of Appeals within 30 days of the date on which this
Court’s mandate issues.
Delivered: April 23, 2008
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