Williams, Ex Parte Robert Earl Jr. ( 2006 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. AP-75,525

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EX PARTE ROBERT EARL WILLIAMS, JR., Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 03-08-0604-CR IN THE 221^ST JUDICIAL DISTRICT COURT FROM MONTGOMERY COUNTY

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   Per curiam.

O P I N I O N  

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 writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of aggravated sexual assault and sentenced to fifty-five (55) years' imprisonment. The Ninth Court of Appeals affirmed his conviction. Williams v. State, 161 S.W.3d 680 (Tex. App. - Beaumont 2005), no pet.

Applicant contends that his appellate counsel rendered ineffective assistance because counsel failed to notify Applicant of his right to file a pro se petition for discretionary review. Additionally, Applicant contends that he informed counsel that he wanted to file a petition for discretionary review and that he believed that counsel had filed a petition until several months after the filing deadline, when he received notice that counsel had withdrawn from representation. Applicant has attached to his application a copy of the letter he received from counsel notifying him that his appeal had been affirmed and advising him to contact counsel immediately if he wanted to file a petition for discretionary review.

Appellate counsel filed two affidavits with the trial court. Based on those affidavits, the trial court entered findings of fact and conclusions of law that appellate counsel does not recall whether Applicant asked him to represent him in filing a petition for discretionary review, but that if Applicant did so, counsel would have filed the petition or informed Applicant that there was no valid issue to pursue. The trial court further finds that Applicant has failed to plead or prove that he had any non-frivolous issue to pursue in a petition for discretionary review. The trial court recommends that relief be denied. However, counsel's affidavits do not address the question of whether Applicant was notified of his right to file a pro se petition for discretionary review, and Applicant is not required to plead or prove that he has a non-frivolous issue to pursue in order to obtain relief. Ex parte Wilson, 956 S.W.2d 25 (Tex. Crim. App. 1997). 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 Ninth Court of Appeals in Cause No. 09-03-00579-CR that affirmed his conviction in Case No. 03-08-06040-CR from the 221st Judicial District Court of Montgomery County, Texas. Applicant shall file his petition for discretionary review with the Ninth Court of Appeals within 30 days of the date on which this Court's mandate issues.

Delivered: October 18, 2006

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