Avalos, Ex Parte Ismael ( 2010 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. AP-76,341
EX PARTE ISMAEL AVALOS, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 1059142 IN THE 337 TH JUDICIAL DISTRICT COURT
FROM HARRIS 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 pleaded guilty to possession with
intent to deliver a controlled substance, and was sentenced to thirty-three years’ imprisonment. The
Fourteenth Court of Appeals affirmed his conviction. Avalos v. State, No. 14-06-00969-CR (Tex.
App. – Houston [14th Dist.], May 15, 2008).
Applicant contends that his appellate counsel rendered ineffective assistance because counsel
failed to timely notify Applicant that his conviction had been affirmed and failed to advise him of
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his right to petition for discretionary review pro se.
Appellate counsel filed an affidavit with the trial court. Based on that affidavit, the trial court
has entered findings of fact and conclusions of law that appellate counsel failed to timely notify
Applicant that his conviction had been affirmed and failed to advise him of his right to petition for
discretionary review pro se. 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 Fourteenth Court of
Appeals in Cause No. 14-06-00969-CR that affirmed his conviction in Case No. 1059142 from the
337th Judicial District Court of Harris County. Applicant shall file his petition for discretionary
review with the Fourteenth Court of Appeals within 30 days of the date on which this Court’s
mandate issues. Applicant's remaining claim is dismissed. See Ex parte Torres, 943 S.W.2d 469
(Tex. Crim. App. 1997).
Delivered: May 5, 2010
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