Washington, Ex Parte Robert Earl ( 2004 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. AP-75,056

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EX PARTE ROBERT EARL WASHINGTON, Applicant

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ON APPLICATION FOR WRIT OF HABEAS CORPUS

CAUSE NUMBER 7566 IN THE 82ND JUDICIAL

DISTRICT COURT FALLS COUNTY

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   Per Curiam.

O P I N I O N  

   This is an application for a writ of habeas corpus which was transmitted to this Court by the clerk of the trial court pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of possession of cocaine and sentenced to sixty-six years imprisonment. His conviction was affirmed by the Tenth Court of Appeals in an unpublished opinion on February 25, 2004. Washington v. State, No. 10-02-044-CR (Tex. App. -- Waco 2004, no pet.).

Applicant contends that his appellate counsel rendered ineffective assistance because he failed to ensure that Applicant received timely notice of the Tenth Court of Appeals' decision to affirm his conviction. Applicant also contends that counsel failed to inform him of his right to file a petition for discretionary review.

Based on an affidavit filed by Applicant's appellate counsel, the trial court has determined that counsel did not timely notify Applicant that his conviction had been affirmed and that he had the right to file a pro se petition for discretionary review. Therefore, we find that Applicant is entitled to the opportunity to file an out-of-time petition for discretionary review due to the ineffective assistance of his appellate counsel. Applicant is granted leave to file an out-of-time petition for discretionary review from the Court of Appeals' judgment in cause number 10-02-044-CR affirming his conviction in cause number 7566 from the 82nd Judicial District Court of Falls County, Texas. Applicant shall file his petition for discretionary review with the Court of Appeals within thirty days of the issuance of this Court's mandate.

DELIVERED: December 15, 2004

DO NOT PUBLISH