Simmons, Robert Nicholas ( 2024 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-94,792-04
EX PARTE ROBERT NICHOLAS SIMMONS, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 17FC-3271-H(1) IN THE 347TH DISTRICT COURT
FROM NUECES COUNTY
Per curiam. SLAUGHTER, J., filed a concurring opinion. KELLER, P.J., dissented.
OPINION
Applicant was convicted of intoxication manslaughter and sentenced to fifteen years’
imprisonment. The Thirteenth Court of Appeals affirmed his conviction. Simmons v. State, 672
S.W.3d 821 (Tex. App.—Corpus Christi 2023). Applicant filed this application for a writ of habeas
corpus in the county of conviction, and the district clerk forwarded it to this Court. See TEX. CODE
CRIM. PROC. art. 11.07.
Applicant contends that appellate counsel failed to advise him of his right to file a pro se
petition for discretionary review. Based on the record, we have determined that appellate counsel’s
performance was deficient and that Applicant would have timely filed a petition for discretionary
review but for counsel’s deficient performance.
2
Relief is granted. Ex parte Wilson, 956 S.W.2d 25 (Tex. Crim. App. 1997); Ex parte Crow,
180 S.W.3d 135 (Tex. Crim. App. 2005). Applicant may file an out-of-time petition for
discretionary review of the judgment of the Thirteenth Court of Appeals in cause number 13-22-
00322-CR. Should Applicant decide to file a petition for discretionary review, he must file it with
this Court within thirty days from the date of this Court’s mandate.
Copies of this opinion shall be sent to the Texas Department of Criminal Justice–Correctional
Institutions Division and the Board of Pardons and Paroles.
Delivered: SEPTEMBER 4, 2024
Do not publish