Nelson, Ex Parte Ladell Ontwell

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

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NO. AP-77,001

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EX PARTE LADELL ONTWELL NELSON, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 1235307 IN THE 183rd DISTRICT COURT

FROM HARRIS 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 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 with intent to deliver and sentenced to fifteen years’ imprisonment. The First Court of Appeals affirmed his conviction. Nelson v. State, No. 01-10-00783-CR (Tex. App.–Houston [1^st Dist.], delivered October 27, 2011, no pet.).

            Applicant contends that his appellate counsel rendered ineffective assistance because counsel failed to timely notify Applicant that his conviction had been affirmed.

            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 there was a breakdown in the system and the Applicant did not receive notification that his conviction had been affirmed. The trial court recommends that relief be granted. We agree with the trial court that the Applicant is entitled to relief. However, counsel admits in his affidavit that he did not comply with the requirements of Rule 48.4 of the Texas Rules of Appellate Procedure when he attempted to notify the Applicant of the appellate court’s decision. Therefore, the record reflects that Applicant was deprived of his right to pursue discretionary review on his own due to counsel’s failure to send proper notification. 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 First Court of Appeals in Cause No. 01-10-00783-CR that affirmed his conviction in Cause No. 1235307 from the 183rd District Court of Harris County. Applicant shall file his petition for discretionary review with this Court within 30 days of the date on which this Court’s mandate issues.

Delivered: March 27, 2013

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