Salvador, Ex Parte Jose Ismael ( 2006 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. AP-75,495

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EX PARTE JOSE ISMAEL SALVADOR, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS

TRIAL COURT CAUSE NO. 751739-A

IN THE 263^rd JUDICIAL DISTRICT COURT

FROM HARRIS 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 pursuant to the provisions of Tex. Code Crim. Proc. art. 11.07. Applicant was convicted of the offense of attempted capital murder, and punishment was assessed at confinement for 50 years. Applicant's judgment of conviction was affirmed. Salvador v. State, 12-97-00228-CR (Tex. App.-Tyler 1999, no pet.).

Applicant contends that his appellate attorney rendered ineffective assistance because she failed to inform him he had the right to file a pro se petition for discretionary review, and he would have exercised that right had he been so informed. Appellate counsel concedes she did not inform applicant of his right to file a pro se petition for discretionary review. The trial court recommends that applicant be granted an out-of-time petition for discretionary review. The court also recommends all of applicant's other claims be dismissed. See Ex parte Torres, 943 S.W.2d 469 (Tex. Crim. App. 1997).

We agree. Counsel has a duty to notify Applicant that his judgment of conviction was affirmed on direct appeal, and if counsel elects not to pursue discretionary review, to notify Applicant of his right to file a pro se petition for discretionary review. Strickland v. Washington, 466 U.S. 608 (1984); Ex parte Wilson, 956 S.W.2d 25 (Tex. Crim. App. 1997); Ex parte Crow, 180 S.W.3d 135 (Tex. Crim. App. 2005).  

Relief is granted. Applicant is entitled to an out-of-time petition for discretionary review in cause number 751739-A in the 263^rd Judicial District Court of Harris County. This cause is returned to that point in time at which applicant may file a pro se petition for discretionary review. For purposes of the Texas Rules of Appellate Procedure, all time limits shall be calculated as if the court of appeals' judgment was rendered on the date that the mandate of this Court issues. We hold that should applicant desire to prosecute a pro se petition for discretionary review, he must take affirmative steps to see that his petition is filed within thirty days after the mandate of this Court has issued. All of Applicant's other claims are dismissed. Ex parte Torres, 943 S.W.2d 469 (Tex. Crim. App. 1997).

DELIVERED: September 13, 2006

DO NOT PUBLISH