Marsh, Ex Parte Charles Philip ( 2007 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. AP-75,652

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EX PARTE CHARLES PHILIP MARSH, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. CR94-176-1 IN THE 22nd DISTRICT COURT FROM COMAL 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 thirty-five years' imprisonment. The Third Court of Appeals affirmed his conviction. Marsh v. State, No. 03-94-00736-CR (Tex. App.-Austin, delivered March 13, 1996, no pet).

Applicant contends that his appellate counsel rendered ineffective assistance because counsel failed to timely notify Applicant that his conviction had been affirmed. We remanded this application to the trial court for findings of fact and conclusions of law.

The trial court has entered findings of fact and conclusions of law, supported by the record, that appellate counsel failed to timely notify Applicant that his conviction had been affirmed. The trial court recommends that relief be granted. 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 Third Court of Appeals in Cause No. 03-94-00736-CR that affirmed his conviction in Case No. CR94-176-CR from the 22nd Judicial District Court of Comal County. Applicant shall file his petition for discretionary review with the Third Court of Appeals within 30 days of the date on which this Court's mandate issues.

Delivered: April 4, 2007

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