             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                         NO. WR-89,346-01


                       EX PARTE JOHN EDWARD CANTU, Applicant


                 ON APPLICATION FOR A WRIT OF HABEAS CORPUS
               CAUSE NO. A-04-1023-S-W-1 IN THE 51st DISTRICT COURT
                           FROM TOM GREEN COUNTY


        Per curiam.

                                              ORDER

        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 possession of a

controlled substance with intent to deliver and sentenced to forty years’ imprisonment. The Third

Court of Appeals affirmed his conviction. Cantu v. State, No. 03-05-00660-CR (Tex. App.—Austin

July 28, 2006) (not designated for publication).

        After a review of the record, we agree with the trial court’s recommendation to deny relief

in Applicant’s ground one. However, we disagree with the trial court’s recommendation to grant

Applicant an out-of-time petition for discretionary review in ground two. Mandate in this case
                                                                                                    2

issued on December 14, 2006, and Applicant waited over eleven and a half years before filing this

habeas corpus application with the district clerk. In order to be entitled to relief in an out-of-time

petition for discretionary review claim, an applicant must show that, absent counsel’s conduct, he

would have timely filed a petition for discretionary review. Ex parte Crow, 180 S.W.3d 135, 138

(Tex. Crim. App. 2005). Given the extreme delay in this case, any contention on Applicant’s part

that, but for counsel’s errors, he would have timely filed a petition for discretionary review is not

credible and we deny relief.1



Filed: March 6, 2019
Do not publish




       1
          The Court has long recognized that delay on the applicant’s part can prejudice his
credibility. Ex parte Young, 479 S.W.2d 45, 46 (Tex. Crim. App. 1972).
