EX PARTE ERIC GARCIA, Applicant (Other)

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS

NO. WR-77,221-01
EX PARTE ERIC GARCIA, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 09-CR-0340-E IN THE 148TH DISTRICT COURT
FROM NUECES COUNTY
Per curiam.

O R D E R

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 a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of aggravated assault and sentenced to thirty years' imprisonment. The Thirteenth Court of Appeals affirmed his conviction. Garcia v. State, No. 13-09-00555-CR (Tex. App.-Corpus Christi-Edinburg April 14, 2011, no pet.).

Applicant contends that his appellate counsel rendered ineffective assistance because counsel waited twenty-six days after the court of appeals issued its opinion before informing Applicant of the decision. Applicant also contends that counsel did not advise him of his right to file a petition for discretionary review and the availability of other appellate remedies.

The trial court recommended that we deny relief, finding that the State's answer was correct and that counsel did inform Applicant of his right to file a pro se petition for discretionary review. We decline to adopt the trial court's findings of fact and conclusions of law. In its answer, the State quoted from a letter counsel sent to Applicant after his conviction had been affirmed and responded that counsel advised Applicant of his "right to pursue a petition for discretionary review (PDR) pro se" and the "availability of further review." The State's answer, however, is not entirely supported by the record. (1) In her letter to Applicant, counsel wrote:

The Court of Appeals AFFIRMED the Judgment of the Trail Court [sic]. I regret to inform you that we did not win your appeal. You are entitled to file a Pro Se brief on your behalf. I have requested that you have 30 days to do so. If you need additional time to file your brief you may request an extension of time to do so with the Court of Appeals. The Court may or may not grant your request. I have enclosed a copy of the record for your review in preparing your brief. You are not entitled to appointed counsel to file your brief to the Court of Appeals. Further, you may file an 11.07 Writ of Habeas Corpus on your own behalf and as well, you are not entitled to an attorney to be appointed to represent you.

 

We are persuaded that counsel's letter, under any reading, did not advise Applicant of his right to file a pro se petition for discretionary review, and appellate counsel has a duty to advise her client that his conviction has been affirmed and that he has a right not just to the "availability of further review" but to pro se discretionary review before this Court. Ex parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997).

Although counsel did not comply with Wilson, we conclude that Applicant is not credible and not entitled to relief. On May 10, 2011, Applicant filed in this Court a pro se motion for an extension to file a petition for discretionary review. We granted his motion and extended the deadline to July 15, 2011. Applicant has not demonstrated that "absent counsel's conduct" he would have filed a timely petition for discretionary review. See Ex parte Crow, 180 S.W.3d 135, 138 (Tex. Crim. App. 2005). Accordingly, relief is denied.

 

Filed: March 7, 2012

Do not publish

1. We remind all counsel of the importance of being scrupulously accurate in making factual assertions and ensuring that all factual characterizations are fully supported by the record. Tex. Disciplinary R. Prof. Conduct 3.03.