Romero, Ex Parte Nelson

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. AP-76,670

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EX PARTE NELSON ROMERO, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 58,710-A IN THE 23^RD JUDICIAL DISTRICT COURT FROM BRAZORIA 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 writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of possession of a deadly weapon in a penal institution and sentenced to thirty years' imprisonment. The Fourteenth Court of Appeals affirmed his conviction. Romero v. State, No. 14-09-01035-CR (Tex. App. - Houston [14^th Dist.], December 2, 2010).

Applicant contends that he was denied his right to petition this Court for discretionary review, because his petition was held by the United States Postal Service for more than a month before being returned for insufficient postage, by which time the deadline for filing the petition had passed.

Applicant's PDR was due to be filed on March 25, 2011. Applicant alleges that he could not get the petition weighed in the law library, and that he was told by other inmates that four stamps should be sufficient. Applicant placed his petition in the prison mail system with four stamps on it on March 5, 2011, a Saturday. Applicant provides documents showing that his petition was mailed on March 7, 2011, and returned to the prison mail authorities on April 14, 2011 for postage due. Had the petition been returned to the prison mail authorities earlier, Applicant would have been able to re-send the petition with adequate postage before the due date.

It appears that Applicant was denied his opportunity to have his PDR considered by this Court through a breakdown in the system, and not through any fault of his own. 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 Fourteenth Court of Appeals in Cause No. 14-09-01035-CR that affirmed his conviction in Case No. 58,710 from the 23rd Judicial District Court of Brazoria 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: November 2, 2011

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