Powell, George Robert III ( 2014 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-80,713-01
EX PARTE GEORGE ROBERT POWELL, III, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. FR 63436-A IN THE 27TH DISTRICT COURT
FROM BELL 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
robbery and sentenced to twenty-eight years’ imprisonment. The Third Court of Appeals affirmed
his conviction. Powell v. State, No. 03-09-00730-CR (Tex. App. – Austin, April 15, 2011).
Applicant contends that this Court failed to consider and apply the “mailbox rule” when it
dismissed his pro se petition for discretionary review as untimely filed. The "prisoner mailbox rule"
as encompassed by TEX. R. APP. P. 9.2(b) provides that, if filed by mail, a document received
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within ten days after the filing deadline is considered timely filed if: 1) it was sent to the proper clerk
by United States Postal Service first-class, express, registered, or certified mail; 2) it was placed in
an envelope or wrapper properly addressed and stamped; and 3) it was deposited in the mail on or
before the last day for filing. A pro se prisoner is deemed to have filed his properly addressed
pleading at the time it is delivered to the appropriate prison authorities for forwarding to the clerk.
Campbell v. State, 320 S.W.3d 338, 342 (Tex. Crim. App. 2010).
We remanded this application to the trial court for findings of fact and conclusions of law
addressing Applicant’s claim that he placed his pro se petition for discretionary review, properly
addressed and stamped in the prison mail system before the last day for filing.
The trial court has obtained an affidavit from the Program Supervisor of the Mail System
Coordinators Panel for the Texas Department of Criminal Justice Correctional Institutional Division.
That affidavit confirms that Applicant placed his properly addressed and stamped petition in the unit
mail receptacle before the last day for filing. Apparently due to staff shortages at the unit at the time,
the envelope containing Applicant’s petition was not logged or mailed to the Third Court of Appeals
until six days later. Based on that affidavit, the trial court has entered findings of fact and
conclusions of law that Applicant’s petition for discretionary review was not untimely filed, when
the “mail box rule” is taken into account. The trial court recommends that relief be granted.
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 Third Court of Appeals in Cause No. 03-09-00730-
CR that affirmed his conviction in Cause No. 63,436 from the 27th District Court of Bell 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.
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Delivered: April 30, 2014
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