Ex Parte Nelson

Court of Criminal Appeals of TexasNov 9, 2005
No. AP-75,292 (Tex. Crim. App. Nov. 9, 2005)

No. AP-75,292

Delivered: November 9, 2005. DO NOT PUBLISH.

On Application for a Writ of Habeas Corpus in Cause Number 28, 214-85, from the 85th District Court of Brazos County.


OPINION


This is a post-conviction application for a writ of habeas corpus forwarded to this Court pursuant to Tex. Code Crim. Proc. Art. 11.07. Applicant was convicted of capital murder and punishment was assessed at imprisonment for life. This conviction was affirmed. Nelson v. State, No. 07-01-0290-CR (Tex.App.-Amarillo, delivered August 27, 2003, no pet.). Applicant contends that he was denied an opportunity to file a petition for discretionary review because his appellate attorney told him that counsel would seek discretionary review for Applicant, then failed to timely file the petition. The trial court, based upon affidavits from appellate counsel, recommends that relief be granted. Habeas corpus relief is granted and Applicant is granted an opportunity to file an out-of-time petition for discretionary review from his conviction in cause number 28,214-85 from the 85th Judicial District Court of Brazos County. Applicant is ordered returned to the point at which he may file a 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' decision had been rendered on the day the mandate of this Court issues. We hold that should Applicant desire to seek discretionary review, he must take affirmative steps to see that his petition is filed in the Court of Appeals within thirty days of the date the mandate of this Court is issued.