Cortez, Ex Parte Ray Recio ( 2009 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. AP-76,144
EX PARTE RAY RECIO CORTEZ, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. B-04-0897-S IN THE 119 TH JUDICIAL DISTRICT COURT
FROM TOM GREEN 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 entered an open plea of guilty to
aggravated kidnapping, and was sentenced to eighty years’ imprisonment. The Third Court of
Appeals affirmed his conviction. Cortez v. State, No. 03-05-00256-CR (Tex. App. – Austin, May
30, 2007).
Applicant contends, inter alia, that he was denied the opportunity to petition this Court for
discretionary review, because he did not receive timely notice that his conviction had been affirmed
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and that he had a right to petition for discretionary review pro se. Appellate counsel filed an
affidavit with the trial court. Based on that affidavit, the trial court entered findings of fact and
conclusions of law that appellate counsel sent timely notice to Applicant that his conviction had been
affirmed, and advised him of his right to petition for discretionary appeal pro se. Because there was
some evidence in the record to support Applicant’s claim that he did not timely receive this notice,
we remanded this application to the trial court for findings of fact and conclusions of law.
The trial court obtained an affidavit from TDCJ, which indicates that Applicant did not
receive any mail from his attorney during the applicable period for filing his petition for discretionary
review. Because it is possible that Applicant was deprived of his opportunity to petition for
discretionary review due to a breakdown in the system, the trial court recommends that relief be
granted. Ex parte Riley, 193 S.W.3d 900 (Tex. Crim. App. 2006). 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 Third Court of Appeals in Cause No. 03-05-00256-CR that affirmed his conviction in Cause
No. B-04-0897-S from the 119th Judicial District Court of Tom Green County. Applicant shall file
his petition for discretionary review with the Third Court of Appeals within 30 days of the date on
which this Court’s mandate issues.
Applicant's remaining claims are dismissed. See Ex parte Torres, 943 S.W.2d 469 (Tex.
Crim. App. 1997).
Delivered: April 29, 2009
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