Roberts, Robert Ray ( 2024 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-31,799-10
EX PARTE ROBERT RAY ROBERTS, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 2021CR5177-W2 IN THE 226TH DISTRICT COURT
FROM BEXAR COUNTY
Per curiam. SLAUGHTER, J., filed a concurring opinion. YEARY, J., dissented.
OPINION
Applicant was convicted of three counts of sexual assault of a child and sentenced to
concurrent terms of nine years’ imprisonment. The Eighth Court of Appeals affirmed his conviction.
Roberts v. State, No. 08-23-00011-CR (Tex. App.–El Paso, August 4, 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 requests an out-of-time petition for discretionary review (PDR). His Article 11.07
application is not verified. However, Applicant made the same request in a previous application that
was properly verified but that was dismissed-direct appeal pending because the mandate had not
issued. In addition, the trial court recommends granting relief on this application. Therefore, this
2
Court will not dismiss the application. See Ex parte Golden, 991 S.W.2d 859 (Tex. Crim. App.
1999).
Appellate counsel did not provide timely notice when Applicant’s conviction was affirmed
on appeal. The appellate opinion was issued on August 4, 2023. Under Texas Rules of Appellate
Procedure Rule 48.4, appellate counsel had five days in which to send Applicant a copy of the
opinion and judgment complying with Texas Rules of Appellate Procedure Rule 68. Appellate
counsel submitted an affidavit in which he acknowledges that the certified mail card was date-
stamped as mailed on August 16, 2023, and date-stamped as picked up by Applicant on August 18,
2023.
Applicant had thirty days after the day the appellate court’s judgment was entered in which
to file a PDR. Tex. R. App. Proc. Rule 68.2(a).1 When Applicant received copies of the appellate
court’s opinion and judgment, he had approximately sixteen days to file a PDR.
Applicant asserts that, as a result of the delay, he did not have time to meaningfully prepare
and file a pro se PDR. The habeas court recommends granting an out-of-time PDR.
We agree. Applicant filed his first writ application requesting an out-of-time PDR on
September 25, 2023. He alleges that he was deprived of the right to file a PDR, and he is currently
asking for an out-of-time PDR. See Ex parte Crow, 180 S.W.3d 135, 138-39 (Tex. Crim. App.
2005). Under the circumstances, Applicant’s allegations are sufficient to prove that he would have
filed a pro se PDR if he had been timely and properly informed that his conviction had been
affirmed. See Ex parte Wilson, 956 S.W.2d 25, 26 (Tex. Crim. App. 1997).
1
Appellate counsel points out that Applicant could have moved for an additional 15 days
under Tex. R. App. Proc. Rule 10.5(b). The record contains no indication that Applicant was
aware of this option or that he would have been capable of complying with the rule.
3
Applicant is granted leave to file an out-of-time petition for discretionary review. Should
Applicant desire to seek discretionary review, he must take affirmative steps to see that his petition
is filed in the Court of Appeals within thirty days after the issuance of the mandate of this Court in
this cause. We dismiss Applicant’s remaining allegations.
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 11, 2024
Do not publish