IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. 74,904

 

EX PARTE DONALD EUGENE LINDER, Applicant




ON APPLICATION FOR A WRIT OF HABEAS CORPUS
FROM WILLIAMSON COUNTY

Per Curiam.

O P I N I O N

This is a post-conviction application for a writ of habeas corpus forwarded to this Court pursuant to Article 11.07 TEX. CODE CRIM. PROC. Applicant was convicted of the felony offense of burglary of a habitation, and punishment was assessed at 60 years' imprisonment. Applicant appealed, and his conviction was affirmed. Linder v. State, No. 03-00-00642-CR (Tex. App. -- Austin, July 26, 2002, no pet.).

Applicant contends, inter alia, that he was denied an opportunity to file a petition for discretionary review because his appellate attorney did not timely notify him that his conviction had been affirmed or that he could seek discretionary review, pro se. The trial court, based upon an affidavit from appellate counsel, and relying on Moore v. Cockrell, 313 F.3d 880 (5th Cir. 2002), recommended that relief be denied. The record reflects however, that counsel did not timely inform Applicant that his conviction had been affirmed or that he could file a petition for discretionary review from his conviction. Under our state habeas cases, Applicant is entitled to this information. See Ex parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997).

Habeas corpus relief is granted, in part, and Applicant is granted leave to file an out-of-time petition for discretionary review from his conviction in cause number 00-263-K368A from the 368th Judicial District Court of Williamson County. Applicant is ordered returned to the point at which he can file a meaningful petition for discretionary review. 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 of the date the mandate of this Court has issued.

Applicant's remaining claims are dismissed. See Ex Parte Torres, 943 S.W.2d 469 (Tex. Crim. App. 1997).

Delivered March 3, 2004

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