Davis, Irvin Ray

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-78,203-03

EX PARTE IRVIN RAY DAVIS, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 1193809 IN THE 184TH DISTRICT COURT FROM HARRIS 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 murder and

sentenced to thirty-five years’ imprisonment. The First Court of Appeals affirmed his conviction.

Davis v. State, No. 01-10-00539-CR (Tex. App. - Houston [1st Dist.], October 20, 2011).

Applicant contends that his appellate counsel rendered ineffective assistance because counsel

failed to advise him of his right to file a pro se petition for discretionary review. We remanded this

application to the trial court for findings of fact and conclusions of law.

Appellate counsel filed an affidavit with the trial court. Based on that affidavit, the trial court 2

has entered findings of fact and conclusions of law that although appellate counsel did advise

Applicant that he had the right to petition this Court for discretionary review, she did not advise

Applicant that he could file a pro se petition for discretionary review. 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. 01-10-00539-CR

that affirmed his conviction in Cause No. 01-10-00539-CR from the 184th 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Delivered: August 21, 2013 Do not publish