Gonzalez, Ex Parte Jesus Manuel ( 2009 )

  IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

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  NO. AP-76,115

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EX PARTE JESUS GONZALEZ, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 03-74252-T IN THE 283^RD DISTRICT COURT

FROM DALLAS 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 murder and sentenced to ninety-nine years’ imprisonment. The Fifth Court of Appeals affirmed his conviction. Gonzalez v. State, No. 05-05-1542-CR, (Tex. App.–Dallas, delivered January 2, 2007).

            Applicant contends that his appellate counsel rendered ineffective assistance because after agreeing to file a petition for discretionary review (PDR), and accepting money to do so, counsel failed to file either a PDR or an extension of time to file such a petition.

            The trial court held a hearing to question appellate counsel. Appellate counsel testified that he agreed to file a petition for discretionary review after Applicant’s appeal was denied. He testified that he agreed to file a PDR for Applicant during the initial 30 days after the court of appeals’ opinion had issued, but he did not receive payment for the PDR until after those 30 days had passed. He testified that he did not attempt to obtain an extension of time from this Court to file a PDR, nor did he inform Applicant to do so. He testified that he never filed a PDR, nor did he attempt to obtain an out-of-time PDR for Applicant. The inaction of appellate counsel resulted in Applicant losing his right to file a PDR to this Court.

            Based on counsel’s testimony, the trial court has entered findings of fact and conclusions of law that appellate counsel failed to secure Applicant’s right to file a PDR. 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 Fifth Court of Appeals in Cause No.05-05-1542-CR that affirmed his conviction in Case No. 03-74252-T from the 283^rd Judicial District Court of Dallas County. Applicant shall file his petition for discretionary review with the Fifth Court of Appeals within 30 days of the date on which this Court’s mandate issues.

            Applicant’s other ground is dismissed. Ex Parte Torres, 943 S.W.2d 469 (Tex. Crim. App. 1997).  

Delivered: March 18, 2009

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