Bacey, Ex Parte Retha Jeanette ( 2004 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. 75,020

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EX PARTE RETHA JEANETTE BACEY, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS

FROM HUNT COUNTY

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Per Curiam.

OPINION  

This is an application for a writ of habeas corpus which was transmitted to this Court pursuant to the provisions of Article 11.07, Tex. Code Crim. Proc. Applicant was convicted of the offense of capital murder, and punishment was assessed at life confinement. Applicant's conviction was affirmed on appeal. Bacey v. State, 990 S.W.2d 319 (Tex. App. --Texarkana, 1999, no pet.).

Applicant contends, inter alia, that appellate counsel failed to inform her that her direct appeal had been affirmed and that she could pursue a petition for discretionary review on her own.

The trial court ordered trial counsel to file an affidavit regarding Applicant's claim. Counsel's affidavit reflects that he recalled sending Applicant a copy of the Court of Appeals opinion in her case, but he has no proof or recollection that he informed her of her right to file a petition for discretionary review pro se. Therefore, Applicant is entitled to relief. Ex parte Wilson, 956 S.W.2d 25 (Tex. Crim. App. 1997).

The proper remedy in a case such as this is to return Applicant to the point at which she can file a petition for discretionary review. She may then follow the proper procedures in order that a meaningful petition for discretionary review may be filed. For purposes of the Texas Rules of Appellate Procedure, all time limits shall be calculated as if the Court of Appeals' decision had been rendered on the day the mandate of this Court issues. We hold that should Applicant desire to seek discretionary review, she must take affirmative steps to see that her petition is filed in the Court of Appeals within thirty days after the mandate of this Court has issued.

IT IS SO ORDERED THIS THE 29^th DAY OF SEPTEMBER, 2004.

EN BANC

DO NOT PUBLISH