Opinion
NO. WR-86,168-02
04-12-2017
EX PARTE CEDRIC COTTRELL EVANS, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 1077372-A IN THE 339TH DISTRICT COURT FROM HARRIS COUNTY Per curiam. ALCALA, J., not participating. 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 murder and sentenced to thirty five years' imprisonment. The First Court of Appeals affirmed his conviction. Evans v. State, No. 01-09-00974-CR (Tex. App.—Houston [1st Dist.] Feb. 3, 2011) (not designated for publication).
Applicant contends that his appellate counsel rendered ineffective assistance because counsel failed to timely notify Applicant that his conviction had been affirmed and failed to advise him of his right to petition pro se for discretionary review.
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 timely notify Applicant that his conviction had been affirmed and failed to advise him of his right to petition for discretionary review pro se. 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 First Court of Appeals in Cause No. 01-09-00974-CR that affirmed his conviction in Cause No. 1077372 from the 339th 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 Delivered: April 12, 2017 Do not publish