EX PARTE CARLOS LARA (other)

OF TEXAS

NO. AP-76,331

EX PARTE CARLOS LARA, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. B03-157-1 IN THE 198TH JUDICIAL DISTRICT COURT

FROM KERR 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 sexual assault of a child and sentenced to thirty-seven years imprisonment. The Fourth Court of Appeals affirmed his conviction. Lara v. State, No. 04-05-00065-CR (Tex. App. San Antonio, March 22, 2006).

Applicant contends that his appellate counsel rendered ineffective assistance because counsel failed to advise him of his right to file petition for discretionary review pro se. We remanded this application to the trial court for findings of fact and conclusions of law.

Appellate counsel filed an affidavit with the trial court. Based on that affidavit, the trial court has entered findings of fact and conclusions of law that there is not sufficient evidence to determine whether or not appellate counsel timely informed Applicant of the right to petition for discretionary review pro se. However, based on the affidavit and the information provided by Applicant in support of his claim, we believe that although appellate counsel did advise Applicant that his conviction had been affirmed on direct appeal, he did not timely inform Applicant of his right to file a pro se petition for discretionary review. 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 Fourth Court of Appeals in Cause No. 04-05-00065-CR that affirmed his conviction in Cause No. B03-157-1 from the 198th Judicial District Court of Kerr County. Applicant shall file his petition for discretionary review with the Fourth Court of Appeals within 30 days of the date on which this Court s mandate issues.

Delivered: April 28, 2010

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