Montgomery, Benny Lee

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-80,097-01
EX PARTE BENNY LEE MONTGOMERY, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. CR34858 IN THE 238TH DISTRICT COURT
FROM MIDLAND 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 a writ of habeas corpus. Ex parte
Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of possession of
cocaine and sentenced to twenty years’ imprisonment. The Eleventh Court of Appeals affirmed his
conviction. Montgomery v. State, No. 11-09-00253-CR (Tex. App.—Eastland Nov. 18, 2010)
(unpublished).
Applicant contends that his appellate counsel rendered ineffective assistance because counsel
advised him that he would file a petition for discretionary review on Applicant’s behalf, but later
made a strategic decision not to file, forfeiting Applicant’s right to petition pro se for discretionary
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review without consulting with him. We remanded this application to the trial court for additional
findings of fact and conclusions of law.
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 fully inform
Applicant of his strategy, forfeiting Applicant’s right to discretionary review without consulting him.
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 Eleventh Court of Appeals in Cause No. 11-09-
00253-CR that affirmed his conviction in Cause No. CR34858 from the 238th District Court of
Midland 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 19, 2014
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