James Alan Whiddon v. State ( 2015 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-82,993-01
EX PARTE JAMES ALAN WHIDDON, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 04-08-13776-A-BCCR IN THE 220TH DISTRICT COURT
FROM BOSQUE COUNTY
Per curiam.
OPINION
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 aggravated
assault on a police officer and sentenced to thirty-five years’ imprisonment. The Tenth Court of
Appeals affirmed his conviction. Whiddon v. State, No. 10-06-00085-CR (Tex. App.—Waco Feb.
7, 2007) (not designated for publication).
Applicant contends, inter alia, that his appellate counsel rendered ineffective assistance
because counsel failed to advise him of his right to file a pro se petition for discretionary review.
Appellate counsel filed an affidavit with the trial court. Based on that affidavit, the trial court has
entered findings of fact and conclusions of law that appellate counsel failed to advise Applicant of
-2-
his right to file a pro se petition for discretionary review, stating “Applicant’s appellate counsel
failed to effectively preserve Applicant’s right to file a PDR.” See Ex parte Wilson, 956 S.W.2d 25
(Tex. Crim. App. 1997). The trial court also rejected the State’s affirmative defense of laches. See
Ex parte Perez, 445 S.W.3d 719 (Tex. Crim. App. 2014). The findings are supported by the habeas
record and are adopted by this Court.
Applicant is entitled to the opportunity to file an out-of-time petition for discretionary review
of the judgment of the Tenth Court of Appeals in Cause No. 10-06-00085-CR that affirmed his
conviction in Cause No. 10-06-00085-CR from the 220th District Court of Bosque County.
Applicant shall file his petition for discretionary review with this Court within 30 days of the date
on which this Court’s mandate issues.
Delivered: June 03, 2015
Do not publish