Villarreal, David ( 2013 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. WR-79,344-01

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EX PARTE DAVID VILLAREAL, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 10 CR 1423 D (S1) IN THE 105^TH DISTRICT COURT FROM NUECES 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 a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of aggravated robbery and sentenced to fifteen years' imprisonment. The Thirteenth Court of Appeals affirmed his conviction. Villareal v. State, 13-10-00605-CR (Tex. App.--Corpus Christi-Edinburg Dec. 15, 2011) (unpublished).

Applicant contends that his appellate counsel rendered ineffective assistance because counsel failed to timely notify Applicant that his conviction had been affirmed. The trial court entered findings of fact and conclusions of law recommending that relief be granted due to a "breakdown in the system." Ex parte Riley, 193 S.W.3d 900 (Tex. Crim. App. 2006).

Appellate counsel filed an affidavit with the trial court and attached her correspondence with Applicant. Based on that evidence, it is apparent that appellate counsel failed to timely notify Applicant that his conviction had been affirmed. 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. 13-10-00605-CR that affirmed his conviction in Cause No. 10 CR 1423 D (S1) from the 105^th District Court of Nueces 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 5, 2013

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