











IN THE COURT OF CRIMINAL APPEALS

OF TEXAS


 

        NO. 74,866         



EX PARTE EDUARDO LEIVA, Applicant




 

ON APPLICATION FOR A WRIT OF HABEAS CORPUS 

                               FROM TARRANT COUNTY                      

 Per Curiam.
O P I N I O N

 This is a post-conviction application for a writ of habeas corpus filed pursuant to Article
11.07, V.A.C.C.P.  Applicant was convicted of intoxication manslaughter and his punishment
was assessed at fifteen years imprisonment.  This conviction was affirmed, Leiva v. State, No.
02-00-001-CR (Tex.App. - Fort Worth, delivered October 5, 2000, no pet.). 
	Applicant contends that he was denied an opportunity to file a petition for discretionary
review because his appellate attorney did not notify him that the conviction had been affirmed
or what he needed to do to file such a petition.  An affidavit filed by appellate counsel states
that counsel has no record any notice of the affirmance was sent to Applicant, and her office
was destroyed by a tornado about the time Applicant's appeal was affirmed.  The trial court has
recommended that Applicant be granted an opportunity to file an out-of-time petition for
discretionary review.
	Therefore, Applicant is entitled to relief.  Ex parte Wilson, 965 S.W.2d 25 (Tex.Cr.App.
1997).  The proper remedy in a case such as this is to return Applicant to the point at which
he can file a petition for discretionary review.  He may then follow the proper procedures in
order that a meaningful petition for discretionary review may be filed.  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 after the mandate of this
Court has issued.
	All other allegations are dismissed.  See Ex parte Torres, 943 S.W.2d 469 (Tex. Crim.
App. 1997).

DELIVERED:  January 21, 2004
DO NOT PUBLISH
