Davis, Ex Parte Eric Lamond ( 2011 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

---

NO. AP-76,635

---

EX PARTE ERIC LAMOND DAVIS, Applicant

---

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 08CR-123 IN THE 349^TH DISTRICT COURT FROM HOUSTON COUNTY

---

   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 murder and sentenced to life imprisonment. The Sixth Court of Appeals affirmed his conviction. Davis v. State, No. 06-09-00033-CR (Tex. App.-Texarkana Sep. 18, 2009).

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

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 failed to notify Applicant that he had a right to file a pro-se petition for discretionary review. Ex parte Wilson, 956 S.W.2d 25 (Tex. Crim. App. 1997); Ex parte Florentino, 206 S.W.3d 124 (Tex. Crim. App. 2006); Tex. R. App. P. 48.4. 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. 06-09-00033-CR that affirmed his conviction in Case No. 08CR-123 from the 349^th Judicial District Court of Houston County. Applicant shall file petition for discretionary review with this Court within 30 days of the date on which this Court's mandate issues.

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

Delivered: September 14, 2011

Do not publish