Carbajal, Ex Parte David ( 2012 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. AP-76,780
EX PARTE DAVID CARBAJAL, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 20060D03759-168-1 IN THE 168TH JUDICIAL DISTRICT COURT
FROM EL PASO 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 was convicted of one count of
attempted capital murder and one count of aggravated kidnapping and sentenced to ninety-nine
years’ imprisonment. The Eighth Court of Appeals affirmed his conviction. Carbajal v. State, No.
08-07-00149-CR (Tex. App. – El Paso, September 30, 2009).
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. We remanded this application to the trial court
for findings of fact and conclusions of law.
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 Eighth Court of
Appeals in Cause No. 08-07-00149-CR that affirmed his conviction in Cause No. 20060D03759
from the 168th Judicial District Court of El Paso 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: April 25, 2012
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