EX PARTE JOEL COOPER (other)

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. AP-76,028

EX PARTE JOEL COOPER, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 909324 IN THE 209TH DISTRICT COURT

FROM HARRIS 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 aggravated sexual assault of a child and sentenced to life imprisonment. The First Court of Appeals affirmed his conviction. Cooper v. State, No. 01-03-01092-CR (Tex. App. – Houston October 14, 2004, no pet.).

            Applicant contends that his appellate counsel rendered ineffective assistance because Applicant wanted to file a petition for discretionary review and relied on appellate counsel’s representation that she would file a petition for discretionary review on his behalf, but counsel did not file a petition for discretionary review or notify Applicant that she would not be filing a petition for discretionary review until after the filing deadline.

            Appellate counsel filed an affidavit with the trial court. Based on that affidavit, the trial court has entered findings of fact that appellate counsel notified Applicant that she would continue to pursue his appeal until she heard otherwise from Applicant, but after the filing deadline counsel informed Applicant that the petition for discretionary review was past due and that she would not be filing a petition on Applicant’s behalf. Thus, Applicant was denied the opportunity to file a 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 First Court of Appeals in Cause No. 01-03-01092-CR that affirmed his conviction in Case No. 909324 from the 209th District Court of Harris County, Texas. Applicant shall file his petition for discretionary review with the First Court of Appeals within 30 days of the date on which this Court’s mandate issues.

 

Filed: November 5, 2008

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