EX PARTE FRANCISCO NORIEGA-GARCIA (other)

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. AP-76,030

EX PARTE FRANCISCO NORIEGA-GARCIA, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. W366-80007-06(HC) IN THE 366TH DISTRICT COURT

FROM COLLIN COUNTY

           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 three counts of aggravated sexual assault of a child and one count of indecency with a child and sentenced to life imprisonment. The Fifth Court of Appeals affirmed his conviction. Noriega-Garcia v. State, No. 05-06-00262-CR (Tex. App. – Dallas, March 7, 2007, no pet.) (not designated for publication.)

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

            The trial court has entered findings of fact and conclusions of law that Applicant was deprived of his right to file a petition for discretionary review pro se. Ex parte Riley, 193 S.W.3d 900 (Tex. Crim. App. 2006). 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. 05-06-00262-CR that affirmed his conviction in Case No. 366-80007-06 from the 366th Judicial District Court of Collin 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.

 

Delivered: November 5, 2008

Do not publish