Davis, Ex Parte Theron Kelly

• Court: Court of Criminal Appeals of Texas
• Decided: January 28, 2004
• Docket: AP-74,873
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. 74,873 EX PARTE THERON KELLY DAVIS, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

FROM DALLAS COUNTY

Per Curiam.

O P I N I O N

This is a post-conviction application for a writ of habeas corpus filed pursuant to the provisions of Article 11.07, V.A.C.C.P. Applicant was convicted of murder, and sentenced to forty-five years imprisonment. His conviction was affirmed on December 29, 1997. Davis v. State, No. 05-95-01800-CR (Tex. App. -- Dallas 1997, no pet.).

Applicant alleges that he was denied his right to file a pro se petition for discretionary review because his counsel failed to inform of his right to pursue a pro se petition for discretionary review. The trial court has found that Applicant is entitled to the opportunity to file an out-of time petition for discretion review. We agree. Applicant was denied his right to file a pro se petition for discretionary review due to the ineffective assistance of his appellate counsel. Ex parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997).

Accordingly, Applicant is granted leave to file an out-of-time petition for discretionary review from the Court of Appeals' judgment in cause number 05-95-01800-CR affirming his conviction for murder in cause number F95-02878-QN from the 195th Judicial District Court of Dallas County, Texas. Applicant shall file his petition with the Court of Appeals within thirty days of the issuance of this Court's mandate.

DELIVERED: January 28, 2004

DO NOT PUBLISH