Florentino, Ex Parte Manuel Escarcega ( 2006 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. AP-75,498

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EX PARTE MANUEL ESCARCEGA FLORENTINO, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 960D02874-120-1 IN THE 120^th DISTRICT COURT FROM EL PASO COUNTY

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   Per curiam.

O P I N I O N  

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 aggravated assault (5 counts) and sentenced to 40 years' imprisonment. The Eighth Court of Appeals affirmed his conviction. Florentino v. State, No. 08-96-000407-CR (Tex. App.--El Paso 1998, no pet.).

Applicant contends that his appellate counsel rendered ineffective assistance because counsel failed to timely advise him of his right to petition for discretionary review pro se.

Appellate counsel filed an affidavit with the trial court. Counsel also filed his original notification letter sent to applicant informing him his conviction was affirmed on direct appeal. That letter did not inform Applicant of his right to file a pro se petition for discretionary review. Counsel does not assert in his affidavit that he ever personally informed applicant of his right to file a pro se petition for discretionary review.

The trial court has entered findings of fact and conclusions of law that appellate counsel did not render deficient performance. We disagree. We conclude appellate counsel failed to timely notify applicant of his right to petition for discretionary review pro se. 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. 08-96-00407-CR that affirmed his conviction in Case No. 960D02874-120-1 from the 120^th Judicial District Court of El Paso County, Texas. Applicant shall file his petition for discretionary review with the Eighth Court of Appeals within 30 days of the date on which this Court's mandate issues.

Delivered: September 13, 2006

PUBLISH