











IN THE COURT OF CRIMINAL APPEALS
OF TEXAS



NO. AP-76,329




EX PARTE YONI R. DIAZ, Applicant




ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. W04-53125-Q(A) IN THE 204TH DISTRICT COURT
FROM DALLAS 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 murder and
sentenced to life imprisonment.  The Fifth Court of Appeals affirmed his conviction.  Diaz v. State,
No. 05-05-00975-CR (Tex. App.–Dallas, delivered October 18, 2006).  
            Applicant contends that his appellate counsel rendered ineffective assistance because counsel
failed to timely notify Applicant that his conviction had been affirmed and failed to advise him of
his right to petition for discretionary review pro se.
            Applicant’s conviction was affirmed on October 18, 2006.  Contained within the habeas
corpus record is an affidavit from an Open Records Coordinator at the Texas Department of Criminal
Justice which indicates that Applicant did not receive any certified, special or legal mail during the
months of October 2006 and November 2006.  The trial court found this affidavit to be credible. 
            The trial court has entered findings of fact and conclusions of law that appellate counsel
failed to timely notify Applicant that his conviction had been affirmed and failed to advise him of
his right to petition for discretionary review pro se.  The trial court recommends that relief be
granted. 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 Fifth Court of Appeals in Cause No. 05-05-00975-CR that affirmed his conviction
in Case No. W04-53125-Q(A) from the 204th Judicial District Court of Dallas County.  Applicant
shall file his petition for discretionary review with the Fifth Court of Appeals within 30 days of the
date on which this Court’s mandate issues.
 
Delivered: April 28, 2010
Do not publish
