Villareal, Ex Parte Brandon Paul ( 2012 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. AP-76,812
EX PARTE BRANDON PAUL VILLAREAL, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 2009-038A IN THE 421ST DISTRICT COURT
FROM CALDWELL 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 a writ of habeas corpus. Ex parte
Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of four counts of
aggravated robbery and sentenced to fifty-five years’ imprisonment. The Third Court of Appeals
affirmed his conviction. Villareal v. State, No. 03-10-00352-CR (Tex. App. – Austin, June 15,
2010).
Applicant contends that his appellate counsel rendered ineffective assistance because counsel
knew that Applicant wanted to pursue discretionary review, but filed a petition for discretionary
review on Applicant’s behalf two days after the filing deadline. This Court dismissed Applicant’s
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petition for discretionary review as untimely.
Appellate counsel filed this application on behalf of Applicant, and concedes that it was
through counsel’s oversight rather than through any fault of Applicant’s that the petition for
discretionary review was untimely filed. Based on the sworn allegations in the application, the trial
court has entered findings of fact and conclusions of law that appellate counsel failed to timely file
the petition for discretionary review, and that this failure denied Applicant the opportunity to prepare
and file a timely petition for discretionary review. 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 Third Court of Appeals in Cause No. 03-10-00352-
CR that affirmed his conviction in Cause No. 2009-038 from the 421st District Court of Caldwell
County. Applicant shall file his petition for discretionary review with this Court within 30 days of
the date on which this Court’s mandate issues.
Delivered: June 6, 2012
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