                 PD-0718&0719-15
                                                                          RECEIVED m
                                                                        COURT OF CRIMINAL APPEALS
                               Edward   Medrano   #1790103
                                 Dalhart Unit TDCJ                            JUN 11 2015
                                     11950 FM 998
                                Dalhart, Texas 79022
                                                                           AbelAcosta,Clerk
                                 June             ,.2015


Abel    Acosta
P.O.    Box 12308/ Capitol Station
Austin,        Texas    78711-2308

        RE:      Appellate Cause Nos. 11-12-00222-CR & 11-12-00223-CR
                 Trial Court Cause Nos. CR-35988 & CR-36058

        Sub:     Motion for Out-Of-Time. Pro Se Petition for Discretionary
                 Review with Attachment-A

Dear    Clerk:


Enclosed please find for filing Petitioner's Motion for Out-Of-
Time Pro Se Petition for Discretionary Review.               Please file date
stamp and bring to the attention of the Court.

Also enclosed,           is a copy of this letterhead. Please file date same
and return in the provided self addressed stamped envelope.

Thank you for your assistance on this matter.

Sincerely,                                                     Cn/|DT ^{-£0 IN
                                                                          CRIMINAL APPEALS

Edward Medrano #1790103                                             G ^Cos^. C/erk
Petitioner        Pro    Se




EFM/
  cc:    Teresa Clingman,        500 N. Loraine,    2nd Fl., Midland,    Texas 79701
         FILE


Enclosures:            Copy of letterhead
                       Self addressed stamped envelope
                            Edward Medrano #1790103
                               Dalhart Unit TDCJ
                                   11950 FM 988
                              Dalhart, Texas 79022

                              June           , 2015

Abel    Acosta
P.O. Box 12308, Capitol Station
Austin,        Texas 78711-2308

        RE:      Appellate Cause Nos.   11-12-00222-CR & 11-12-00223-CR
                Trial Court Cause Nos.    CR-35988 & CR-36058

        Sub:     Motion for Out-Of-Time Pro Se Petition for Discretionary
                Review with Attachment-A

Dear    Clerk:


Enclosed please find for filing Petitioner's Motion for Out-Of-
Time Pro Se Petition for Discretionary Review. Please file date
stamp and bring to the attention of the Court.

Also enclosed,        is a copy of this letterhead. Please file date same
and return in the provided self addressed stamped envelope.

Thank you for your assistance on this matter.

Sincerely,




Edward. Medrano #1790103
Petitioner Pro Se




EFM/
  cc:    Teresa Clingman,     500 N. Loraine,   <§nd Fl., Midland,   Texas 79701
         FILE


Enclosures:        Copy of letterhead
                   Self addressed stamped envelope
                      N0._                           _


                                 IN       THE


                     COURT OF CRIMINAL          APPEALS

                              AUSTIN,      TEXAS




EX PARTE                              §            ORIGINATING IN THE 238th

                                      §            DISTRICT COURT IN AND FOR

EDWARD FERNANDEZ MEDRANO              §            MIDLAND COUNTY, TEXAS




                   MOTION FOR OUT-OF-TIME          PRO SE

                PETITION     FOR DISCRETIONARY REVIEW




               On Appeal from the Court of Appeals

             Eleventh District of Texas at               Eastland

      Appellate Cause Nos.     11-12-00222-CR & 11-12-00223-CR




TO THE HONORABLE JUSTICES OF THE COURT OF CRIMINAL APPEALS:


      COMES NOW,    Edward Fernandez Medrano,              Texas Department of

Criminal Justice(TDCJ)-ID #1790103, Petitioner pro sein the above
captioned and styles cause, and files this Motion for Out-Of-Time

Petition for Discretionary Review(PDR). In support of this motion
Petitioner will show this Honorable Court the following:




                                 -    1   -
                                                  I..

                                    STATEMENT     OF        THE    CASE


             Petitioner was indicted on May 14, 2009, and then again on

June 3, 2009, for the offense of "Indecency With A Child By Expo

sure"    in Cause No.         CR-35,988' and for the offense of                        "Indecent Ex

posure To A Child" in Cause No. CR-36,058.                                The parties agreed to

consolidate          te cases   for      trial.

             The jury found Petitioner "guilty" in each indictment, and

assessed           punishment at confinement for three years for the first

indictment, two years for the first count in the second indictment,

three years for the second count in the second indictment,                                      and two

years for the third count                 in the second indictment.                     However,     the

trial        court suspended the imposition of Petitioner's sentence as

to     the     third count in the second indictment,                             placing Petitioner

on community supervision for a period of ten years.

             The    State   filed    a   motion   under           Sec.    3.03   of   the   Penal   Code

in which it sought to cumulate the four sentences assessed against

Petitioner.           Penal § 3.03(West Supp.                 2013). The trial court found

that     each of the four offenses of which the jury convicted Peti

tioner       was      for indecency with a child under Sec.                           21.11 and that

the     victim in each case was a child younger than seventeen years

of age. The trial court granted the State's motion.

             Petitioner appealed his conviction in the Court of Appeals

Eleventh District of Texas,                 appellate cause nos.                   11-12-00222-CR &

11-12-00223-CR. The court affirmed the case on July 3, 2014, with




                                              -   2     -
                                               II.

                                       TIMELINES



          The Texas Rules of Appellate Procedures(TRAP), Rule § 48.4

provides that:

    In criminal cases, the attorney representing the defendant on appeal
    shall, within five days after the opinion is handed down, send a copy
    of the opinion and judgment,         along with notification of the defend
    ant's    rights to file a pro se petition for discretionary review un
    der Rule 68.        This notification shall be sent certified mail, return
    receipt requested,        to the defendant at his last known address.   The
    attorney shall also send the court of appeals a letter certifying his
    compliance with this rule and attaching a copy of the return receipt
    within the time for filing a motion for rehearing.         The court of ap
    peals shall file this letter in its record of the appeal, (eff. Sept.
    1, 2007).

          The deadline for filing Petitioner's pro se PDR was thirty

days after the court of appeals handed down its opinion and judg

ment affirming the conviction July 3, 2014, pursuant to Id.,                      Rule

§ 68.2.     Thus, causing the deadline date to reflect as                being     due

on or before August 2, 2014. Petitioner has not requested an Out-

Of-Time pro se PDR,            nor has he requested an extension of time to

file a    pro se PDR.

          Petitioner's one-year period of limitations pursuant to the

Antiterrorism and Effective Death Penalty Act(AEDPA) as contained

in 28 U.S.C.      § 2254(d),      provides in part:

     (1) A one-year period of limitations shall apply to an application
         for a writ of habeas corpus by a person in custody to the judg
           ment of a State court. The limitation period shall run from the
           latest of-

           (A)   the date on which the judgment became final by the conclu
                 sion    of   direct   review or the expiration of the time for




                                           -    3    -
              seeking such review;
        (D)   the   date    on   which the factual predicate of the claim or
              claims   presented     could       have been discovered through the
              exercise of due diligance.


                                         III.

                             STATEMENT       OF   THE   FACTS



       Petitioner's request for a Out-Of-Time pro se PDR is based

upon the following facts:

   (a)'Petitioner sent inquiry to the court of appeals on his own

volition, May 27, 2015, requesting status of his appeal, (see Ex-

A, carbon copy of same);

   (b) On May 29, 2015, Petitioner received a copy of the court of

appeals "Memorandum Opinion" from a family member,                    VIA mail;

   (c) On June      , 2015,      Petitioner received notification from the

court of appeals that,           his appeal had been denied and the convic

tion had been affirmed July 3, 2014.                 (see Exhibit B*);

   (d) To date,     appellate counsel has failed to:

        (1) forward a copy of the Appellant and State's Briefs;

        (2) notify Petitioner of the court of appeals'                    "Memorandum

        Opinion" and judgment- or forward copy of same;

        (3) Notify         Petitioner        of his right to file a pro se PDR,

        the    deadline for filing same,                possible grounds for review

        and their merits, and delinating the advantages and disad

        vantages of any further review;




* Retyped copy of same.




                                        -    4
          (4) comply with Tex.R.App.P., Rule § 48.4; and

          (5) comply with the court of appeals' request for a letter

          certifying compliance with said rule,                  and a copy of return

          receipt due on or before July 18,                  2014.

   (e) Appellate counsel's deficient preformance has deprived Pe

titioner of his right to file a pro se PDR;

   (f) Had it not been for appellate counsel's deficient preform

ance,   Petitioner would have timely filed a pro se PDR;

   (g) Appellate       counsel's          deficient preformance has caused the

forfeiture     of   approximately 70% of the AEDPA one-year period of

limitations as contained in 28 U.S.C.                    § 2254(d);

   (g) Petitioner          has     been    denied his Sixth Amendment right to

effective assistance of appellate counsel;

   (h) The TDCJ Dalhart Unit's mail room log will not reflect, or

indicate that,      Petitioner has ever received any incoming mail ei

ther    certified     or     not,    return receipt,          correspondence from the

appellate counsel or his office;                   and

   (i) Petitioner          was not informed that the court of appeals had

issued: its "Mandate" until June 3,                 2015.   VIA In-Cell-Phone-family.


                                          ARGUMENT



          Although there is no right to discretionary review,                    an ap

pellant     ordinarily       has     a    right to file a PDR in an attempt to

persuade     the Court of Criminal Appeals to exercise their discre

tion.     Losing    the right to file a pro se PDR constitutes the de

privation     of    that     entire proceeding.             Ex parte Crow,   180 S.W.3d

135,    138 (Tex.Crim.App. 2005).




                                           -   5    -
      The United States Supreme Court in Strickland v. Washington,

466 U.S.    668,     104 S.Ct.    2052,   80 L.Ed.2d 674(1984),            established a

federal standard for determining whether an attorney rendered ef

fective assistance.        The Strickland test even applies to an attor

neys preformance in handling an appeal.                     See Evitts v. Lucey, 469

U.S. 387,    105 S.Ct. 830,       83 L.Ed.2d 821(1985)(due process requires

that a defendant have effective assistance on his first appeal).

       An appellate attorney has the duty to inform appellant of the

result of the appeal and that he may,                    on his own volition,        pursue

discretionary review in this Court.                    Ex parte Wilson, 956 S.W.2d 25,

27 (Tex.Crim.App. 1997); see.also TRAP,                    Rule § 48.4.

       If appellate counsel's action or inaction denies a defendant

his    opportunity to prepare and file a petition for discretionary

review,     that defendant has been denied his Sixth Amendment right

to effective       assistance.        U.S.C.A.        Const.Amend.   6;     Vernon's   Ann.

Texas Code of Criminal Procedure(CCP),                    art.   26.04;    Id.,   at 26.

       Most recently,      in Ex parte Crow, Id., at 138,                 this Court held

that, the failure of appellate counsel to follow the requirements

of    Wilson,      will be measured by the Sixth Amendment standard for

prejudice     that     is more "limited" than the ordinary standard that

Strickland calls for.           Id.    This Court applied this "limited" pre

judice      requirement to the failure of appellate counsel to inform

Petitioner      of     his right to pursue a pro se PDR,                  noting that al

though      an appellant has no right to discretionary review, he has
an    absolute right to "attempt to persuade this Court to exercise

its discretion."        Crow,    180 S.W.3d at 138.          see also CCP art.         44.45

(d) (1) ; TRAP 66.1.




                                          -   6   -
        Petitioner         pled "not guilty,"               filed his "notice of appeal,"

and     appealed his conviction. This strongly militates in favor of

finding           that the Petitioner would in fact have proceeded further

in     continuing          his     appellate          process and filed a pro se PDR as

well,    as alleged in his affidavit.                      See Ex parte Owens,   206 S.W.3d

670, 676 (Tex.Crim.App.                  2006)(see Exhibit C).

        Yet due to ineffective assistant of appellate counsel, Peti

tioner has lost his right under the Sixth Amentment to file a PDR

in     hopes        of persudaing this Court to exercise their discretion.

Id.,    956       S.W.2d at      26.

        Petitioner          need        not show that the proceeding the counsel's

ineffectiveness deprived him of would have resulted in a favorable

outcome; he need only show that he was deprived of that proceeding

and     he        would    have        availed        himself   of the proceeding had his

counsel's           conduct not caused the forfeiture of the proceeding in

question.           Id.,    180 S.W.3d at 138;^              See also Ex parte Owens,   206

S.W.3d       at    676.


                                            CONCLUSION



        Petitioner's request for an Out-Of-Time PDR,                       is not for or a

form of delay, but is so that Petitioner may be afforded his right

and     a     fair opportunity to petition this Court to exercise their

discretion          for review and exhaust                 all of his post-conviction rem-

idies made available by law.                     A right that has been forfeited at no

fault of Petitioner,               but due to ineffective assistance of appell

ate counsel,          in failing to comply with Id., Rule § 48.4.

        Therefore,         this Court should grant Petitioner's motion for an




                                                  -    7
Out-Of-Time PDR in hopes of persuading this Honorable Court to re

view the       issues Petitioner will          present       to the    Court.

        The Court should also reinstate the AEDPA's one-year limita

tions     to     reflect   this      Court's calculations for a renewd begin

date     so that Petitioner has a fair and impartial outcome to this

proceeding.


                                      PRAYER



        WHEREFORE,    PREMISES CONSIDERED,              Petitioner prays this Honor

able Court grant this Motion for Out-Of-Time PDR so that he may be

afforded an opportunity to petition this Honorable Court for their

discretionary review on issued presented and reinstate the AEDPA's

one-year limitations period lost to Petitioner at no fault of his

own.    So prayed.

                                                   Respectfully submitted,




                                                   Edward Medrano        #1790103
                                                   Dalhart    Unit     TDCJ
                                                   11950 FM 998
                                                   Dalhart, Texas        79022
                                                   Petiitoner pro se


                            CERTIFICATE            OF   SERVICE



        This is to certify that a true and correct copy of the above

Motion    for    Out-Of-Time   Pro    Se   PDR was         sent   to   the    State, VIA-Mail,

in accordance with the Texas Rules of Appellate Procedure,                             to:

Teresa Clingman,       500 N. Loraine,             2nd Fl. , Midland, Texas 79701.

        Executed on this the                   day of June, 2015.




                                           -   8    -
                                               Edward Medrano       #1790103
                                               Petitioner Pro       Se



                           UNSWORN        DECLARATION



       I,   Edward Medrano,    TDCJ-ID #1790103,             being presently incar

cerated in the Dalhart Unit of the TDCJ in Hartley County,                        Texas,

verify and declare,     under penalty of perjury that I had                     read   the

foregoing statements and facts contained within this petition and

the   attached   "Affidavit"   and   same       are   true   and    correct.


       Executed on this the                day of June, 2015.




                                               Edward   Medrano      #1790103
                                               Petitioner     Pro    Se




                                      -    9    -
ATTACHMENT-A
THE STATE OF TEXAS                       §

                                         §

COUNTY OF HARTLEY                        §


                   AFFIDAVIT OF "EDWARD FERNANDEZ     MEDRANO"


        I, Edward Fernandez Medrano, affiant, first being duly sworn
hereby depose and say:

        My name is Edward Fernandez Medrano,        I am a resident of Texas

being presently incarcerated in the TDCJ Dalhart Unit.                 I am over

the age of twenty-one(21) and of sound mind.                The following is a
true        and correct,   factual statement concerning the Motion for an

Out-Of-Time Pro Se PDR in connection with appellate cause numbers

11-12-00222-CR and 11-12-00223-CR.


        "If my appellate attorney would have followed the strict re

quirements as outlined in the Texas Rules of Appellate Procedure,

Rule        § , 48.4, and not only notified me that the court of appeals
had     issued their decision and "Memorandum Opinion" in the denial

of     my    appeal but, informed me of my right to prepare and file a

pro se PDR,       I would in fact have petitioned the Court of Criminal

for     them     to exercise their discretionary for a review of issues

presented,        and timely continued with my post-conviction remedies

until fully exhausted.


        Executed on this the             day of June, 2015.




                                         Edward Medrano     #1790103
                                         Petitioner   Pro   Se




                                - page   1 of 1 -
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