ON APPLICATION FOR A WRIT OF HABEAS CORPUS
This is a post-conviction application for a writ of habeas corpus filed pursuant to Article 11.07, V.A.C.C.P. Applicant was convicted of intoxication manslaughter and punishment was assessed at sixteen years confinement. This conviction was affirmed, Milan v. State, No. 08-99-061-CR (Tex.App. - El Paso, delivered May 25, 2000, no pet.).
Applicant contends that he was denied an opportunity to file a petition for discretionary review because his appellate attorney did not notify him that the conviction had been affirmed or what he needed to do to file such a petition. An affidavit filed by appellate counsel states that counsel forgot to tell Applicant that he could file a pro se petition for discretionary review. The trial court has recommended that Applicant be granted an opportunity to file an out-of-time petition for discretionary review.
Therefore, Applicant is entitled to relief. Ex parte Wilson, 965 S.W.2d 25 (Tex.Cr.App. 1997). The proper remedy in a case such as this is to return Applicant to the point at which he can file a petition for discretionary review. He may then follow the proper procedures in order that a meaningful petition for discretionary review may be filed. 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 after the mandate of this Court has issued.
DELIVERED: September 3, 2003
DO NOT PUBLISH