IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-93,328-01

EX PARTE JUAN GALLARDO, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 2017-411,874-A IN THE 137TH DISTRICT COURT FROM LUBBOCK COUNTY

Per curiam.

OPINION Applicant was convicted of murder and sentenced to life imprisonment. The Seventh Court of Appeals affirmed his conviction. Gallardo v. State, 07-20-00011-CR (Tex. App.–Amarillo, Aug.

2, 2021). Applicant filed this application for a writ of habeas corpus in the county of conviction, and the district clerk forwarded it to this Court. See TEX . CODE CRIM . PROC. art. 11.07.

Applicant contends that appellate counsel failed to timely notify him when his conviction was affirmed. Therefore, Applicant lost the opportunity to file a PDR. Appellate counsel acknowledges that he and Applicant had discussed Applicant’s desire to pursue post-conviction remedies, including filing a PDR. However, when the appellate court affirmed the judgment in this case, counsel was out of the office for protracted periods of time due to illness in his family. As a result, he failed to timely inform Applicant when his conviction was affirmed on direct appeal. He recommends providing Applicant with the opportunity to file an out-of-time PDR.

The trial court finds appellate counsel’s statements worthy of belief. The court concludes that Applicant was not timely informed of the Court of Appeals’ decision affirming his conviction and of his right to file a pro se petition for discretionary review from that decision. The court recommends granting relief.

Relief is granted. Smith v. Robbins, 528 U.S. 259 (2000); Ex parte Miller, 330 S.W.3d 610 (Tex. Crim. App. 2009). Applicant may file an out-of-time PDR of the opinion of the Seventh Court of Appeals in cause number 07-20-00011-CR that affirmed the judgment of conviction in cause number 2017-411,874 from the 137th District Court of Lubbock County. Applicant shall file his PDR with this Court within 30 days of the date on which this Court’s mandate issues.

Delivered: May 25, 2022 Do not publish