McGary, Ex Parte David T. A/K/A David Sanders ( 2010 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. AP-76,368
EX PARTE DAVID T. MCGARY, AKA DAVID SANDERS, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 4006 IN THE 46TH DISTRICT COURT
FROM HARDEMAN 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 this application for a 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 ninety-nine years’ imprisonment. The Seventh Court of
Appeals affirmed his conviction. McGary v. State, No. 07-07-00503-CR (Tex. App.–Amarillo 2008,
no pet.).
Applicant contends that his appellate counsel rendered ineffective assistance because counsel
failed to advise Applicant of his right to file a pro se petition for discretionary review. On August
2
19, 2009, we remanded this application and directed the trial court to make findings of fact and
conclusions of law and to order appellate counsel to respond to Applicant’s claim. On February 3,
2010, we remanded this application again and directed the trial court to make further findings and
conclusions as to whether appellate counsel timely notified Applicant that his conviction had been
affirmed. We also directed the trial court to order appellate counsel to file a second response and
explain whether he timely advised Applicant that his conviction had been affirmed.
On the second remand, appellate counsel did not file a response. 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 Seventh Court of Appeals in Cause No. 07-07-00503-CR that affirmed his
conviction in Case No. 4006 from the 46th Judicial District Court of Hardeman County. Applicant
shall file his petition for discretionary review with the Seventh Court of Appeals within 30 days of
the date on which this Court’s mandate issues.
Delivered: June 30, 2010
Do not publish