Burns, Ex Parte Tramaine D.

• Court: Court of Criminal Appeals of Texas
• Decided: June 27, 2007
• Docket: AP-75,716
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. AP-75,716 EX PARTE TRAMAINE D. BURNS, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 0893961 IN THE CRIMINAL DISTRICT COURT NO. 4

FROM TARRANT COUNTY

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 writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of aggravated assault with a deadly weapon and sentenced to forty-eight (48) years' imprisonment. The Second Court of Appeals affirmed his conviction. Burns v. State, 2006 WL 412973, No. 02-04-601-CR (Tex. App. - Fort Worth, February 23, 2006) (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. We remanded this application to the trial court in order to provide appellate counsel with an opportunity to respond to Applicant's claim in the context of habeas corpus review.

Appellate counsel filed an affidavit with the trial court. Based on that affidavit, the trial court has entered supplemental findings of fact and conclusions of law that appellate counsel failed to timely notify Applicant that his conviction had been affirmed. 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 Second Court of Appeals in Cause No. 02-04-601-CR that affirmed his conviction in Case No. 0893961D from the Criminal District Court No. 4 of Tarrant County. Applicant shall file his petition for discretionary review with the Second Court of Appeals within 30 days of the date on which this Court's mandate issues. All other claims are dismissed. See Ex parte Torres, 943 S.W.2d 469 (Tex. Crim. App. 1997).

Delivered: June 27, 2007

Do not publish