Troncoso, Ex Parte Fidel Borroso ( 2005 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. AP-75,205

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EX PARTE FIDEL BORROSO TRONCOSO, Applicant

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ON APPLICATION FOR WRIT OF HABEAS CORPUS

CAUSE NUMBER 42,161 IN THE 23RD JUDICIAL

DISTRICT COURT BRAZORIA COUNTY

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   Per Curiam.

O P I N I O N  

   This is an application for a writ of habeas corpus which was transmitted to this Court by the clerk of the trial court pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of the first degree felony offense of murder with a deadly weapon. A jury assessed his sentence at a term of imprisonment for fifty-five years. His conviction was affirmed by the Sixth Court of Appeals in an unpublished opinion on March 24, 2004. Troncoso v. State, No. 06-03-00065-CR (Tex. App. -- Texarkana 2003, no pet.).

Among other grounds for review, Applicant contends that his appellate counsel rendered ineffective assistance because he failed to inform him of the court of appeals' decision affirming his conviction and of his right to file a pro se petition for discretionary review.

Based on an affidavit filed by Applicant's appellate counsel, the trial court has determined that appellate counsel timely notified Applicant that his conviction had been affirmed and that the court of appeals denied his motion for rehearing. However, the court has found that "counsel failed to properly inform the Applicant of his right to file a pro se petition for discretionary review." As a result, the court determined that counsel was ineffective for failing to inform Applicant of his right to file a pro se petition for discretionary review. After a review of the record, we find that Applicant is entitled to the opportunity to file an out-of-time petition for discretionary review due to the ineffective assistance of his appellate counsel. Ex parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997). Applicant is granted leave to file an out-of-time petition for discretionary review from the Court of Appeals' judgment in cause number 06-03-00065-CR affirming his conviction in cause number 42,161 from the 23rd Judicial District Court of Brazoria County, Texas. Applicant shall file his petition for discretionary review with the Court of Appeals within thirty days of the issuance of this Court's mandate. Applicant's remaining grounds for relief are dismissed.

DELIVERED: June 22, 2005

DO NOT PUBLISH