Hardeman, Ex Parte David ( 2010 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. AP-76,402
EX PARTE DAVID HARDEMAN, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 3021525 IN THE 390 TH DISTRICT COURT
FROM TRAVIS 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 writ of habeas corpus. Ex parte
Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of one count of
aggravated assault, sentenced to eighty years’ imprisonment and one count of attempted murder,
sentenced to ninety-nine years’ imprisonment. The Third Court of Appeals affirmed his conviction.
Hardeman v. State, No. 03-04-005236-CR (Tex. App.–Austin, delivered May 5, 2006).
Applicant contends that his appellate counsel rendered ineffective assistance because counsel
failed to timely file a petition for discretionary review on his behalf after informing Applicant that
2
he would do so.
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 failed to timely
file a petition for discretionary review. The trial court recommends that relief be granted. Ex parte
Wilson, 956 S.W.2d 25 (Tex. Crim. App. 1997). We agree. 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. 03-04-00536-CR that affirmed his conviction in Case No.
3021525 from the 390th Judicial District Court of Travis 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: August 25, 2010
Do not publish