Kossie, Ex Parte Darrell Wayne ( 2008 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NOS. AP-75,831 & AP-75,832
EX PARTE DARRELL WAYNE KOSSIE, Applicant
ON APPLICATIONS FOR WRITS OF HABEAS CORPUS
CAUSE NO. 973065 IN THE 262 ND JUDICIAL DISTRICT COURT
FROM HARRIS COUNTY
Per curiam.
OPINION
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 these applications for writ of habeas corpus. Ex parte
Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of possession of a
controlled substance and sentenced to thirty-five years’ imprisonment. The First Court of Appeals
affirmed his conviction. Kossie v. State, No. 01-04-00770-CR (Tex. App. – Houston [1st Dist.]
October 13, 2005, no pet.) Applicant filed his first writ of habeas corpus in the district court on
October 12, 2006. He filed his second writ in the district court on December 19, 2007. Both writs
were forwarded to this Court at the same time. Although they both challenge the same conviction,
the second writ is not barred by Article 11.07, Section 4 of the Texas Code of Criminal Procedure
because this Court had not disposed of the first writ before the second writ was filed.
In both writs Applicant contends, inter alia, that his appellate counsel rendered ineffective
assistance because counsel failed to timely notify Applicant that his conviction had been affirmed.
Appellate counsel filed an affidavit with the trial court. Based on that affidavit, the trial court has
entered findings of fact and conclusions of law that appellate counsel did not receive timely notice
of the court of appeals’ decision, and therefore 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); Ex parte Riley, 193 S.W.3d 900 (Tex. Crim. App. 2006). 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 First Court of Appeals in Cause No. 01-04-00770-CR that affirmed
his conviction in Case No. 973065 from the 262nd Judicial District Court of Harris County.
Applicant shall file his petition for discretionary review with the First 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: February 6, 2008
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