Spencer, Andra Parnell ( 2006 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. AP-75,578

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EX PARTE ANDRA PARNELL SPENCER, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. CR-24383 IN THE 159TH DISTRICT COURT FROM ANGELINA 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 engaging in organized criminal activity and sentenced to twenty-five years' imprisonment after Applicant was found to be a habitual offender. The Sixth Court of Appeals affirmed his conviction. Spencer v. State, No. 06-05-074-CR (Tex.App. - Texarkana, delivered December 22, 2005, 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.

Appellate counsel failed to file an affidavit with the trial court after being provided an opportunity to do so, and Applicant filed an affidavit stating that appellate counsel never notified him that his appeal had been affirmed. Based on that affidavit, the trial court has entered findings of fact and conclusions of law 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 Sixth Court of Appeals in Cause No. 06-05-074-CR that affirmed his conviction in Case No. CR-24383 from the 159th Judicial District Court of Angelina 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.

Delivered: December 20, 2006

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