Davis, Kevin Leland AKA Davis, Kevin

• Court: Court of Criminal Appeals of Texas
• Decided: October 6, 2021
• Docket: WR-30,784-02
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-30,784-02

EX PARTE KEVIN DAVIS, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 2016CR10897-W1 IN THE 290TH DISTRICT COURT FROM BEXAR COUNTY

Per curiam.

OPINION

Applicant was convicted of robbery and sentenced to thirty years’ imprisonment. The Fourth

Court of Appeals affirmed his conviction. Davis v. State, No. 04-17-00236-CR (Tex. App. — San

Antonio July 25, 2018) (not designated for publication). Applicant filed this application for a writ

of habeas corpus in the county of conviction, and the district clerk forwarded it to this Court. See

TEX . CODE CRIM . PROC . art. 11.07.

Applicant contends that appellate counsel failed to timely inform Applicant that his conviction

had been affirmed and advise him of his right to file a pro se petition for discretionary review.

Applicant alleges that he would have pursued a petition for discretionary review had he been timely

notified of the appellate decision and of his right to file a pro se petition. 2

Appellate counsel has responded by way of affidavit, in which he states that he sent a letter

to Applicant advising him that his conviction had been affirmed and describing his options going

forward. A copy of the letter is attached to appellate counsel’s affidavit. The letter, which was not

sent via certified mail as required by Rule 48.4 of the Texas Rules of Appellate Procedure, did not

advise Applicant that he had the right to pursue discretionary review pro se, as required by Ex parte

Wilson, 956 S.W.2d 25 (Tex. Crim. App. 1997). Applicant claims that he never received the letter,

and appellate counsel concedes that he did not send a letter certifying compliance with Rule 48.4 to

the court of appeals. This Court believes that appellate counsel's failure to comply with the

requirements of Rule 48.4 of the Texas Rules of Appellate Procedure is prima facie evidence that

Applicant did not receive the information necessary to make an informed decision about pursuing

discretionary review in this Court.

Relief is granted. Ex parte Wilson, 956 S.W.2d 25 (Tex. Crim. App. 1997); Ex parte Crow,

180 S.W.3d 135 (Tex. Crim. App. 2005). Applicant may file an out-of-time petition for discretionary

review of the judgment of the Fourth Court of Appeals in cause number 04-17-00236-CR. Should

Applicant decide to file a petition for discretionary review, he must file it with this Court within thirty

days from the date of this Court’s mandate.

Copies of this opinion shall be sent to the Texas Department of Criminal Justice–Correctional

Institutions Division and the Board of Pardons and Paroles.

Delivered: October 6, 2021

Do not publish