Starks, Ex Parte Thomas Lee ( 2004 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. AP-75,055

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EX PARTE THOMAS LEE STARKS, Applicant

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ON APPLICATION FOR WRIT OF HABEAS CORPUS FROM HARRIS 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 aggravated assault and sentenced to thirty-five years imprisonment. His conviction was affirmed by the First Court of Appeals in an unpublished opinion on October 16, 2003. Starks v. State, No. 01-02-00717-CR (Tex. App. -- Houston 2003, no pet.).

Applicant contends that his appellate counsel rendered ineffective assistance because he failed to ensure that Applicant received timely notice of the First Court of Appeals' decision to affirm his conviction. As a result, Applicant claims that he was denied the opportunity to file a petition for discretionary review.

After a review of the habeas record, 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 01-02-00717-CR affirming his conviction in cause number 887293 from the 176th Judicial District Court of Harris 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 8, 2004

DO NOT PUBLISH