Kincaid, Ex Parte Ben Henry ( 2007 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. AP-75,799

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EX PARTE BEN HENRY KINCAID, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. CR98-233 IN THE 4TH JUDICIAL DISTRICT COURT FROM RUSK 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 assault and sentenced to fifteen (15) years' imprisonment. The Sixth Court of Appeals affirmed his conviction. Kincaid v. State, No. AP-06-99-00179-CR (Tex. App.- Texarkana, 2000, no pet.) (not designated for publication.)

Applicant contends inter alia that his appellate counsel rendered ineffective assistance because counsel failed to timely notify Applicant that his conviction had been affirmed and that he had a right to file a petition for discretionary review, pro se. We remanded this application to the trial court for findings of fact and conclusions of law.

The trial judge held a habeas hearing on September 11, 2007. The trial judge entered findings of fact based on Applicant's testimony and counsel's testimony at the habeas hearing. The trial judge found that Applicant did not receive timely notice that his conviction had been affirmed or that he had a right to further appeal, pro se. On the basis of these findings, it is appropriate to grant 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 Sixth Court of Appeals in Cause No. AP-06-99-00179-CR that affirmed his conviction in Case No. CR98-233 from the Fourth Judicial District Court of Rusk County. Applicant shall file his petition for discretionary review with the Sixth Court of Appeals within 30 days of the date on which this Court's mandate issues.  

Applicant's remaining claims are dismissed. See Ex parte Torres, 943 S.W.2d 469 (Tex. Crim. App. 1997).

Delivered: November 21, 2007

Do not publish