Dismuke, Ex Parte Deeshawn

• Court: Court of Criminal Appeals of Texas
• Decided: December 20, 2006
• Docket: AP-75,579
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. AP-75,579 EX PARTE DEESHAWN DISMUKE, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 28250CR IN THE 40^TH JUDICIAL DISTRICT COURT

FROM ELLIS 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 injury to a child and sentenced to forty years' imprisonment and a fine of five thousand dollars. The Tenth Court of Appeals affirmed his conviction. Dismuke v. State, No. 10-05-00247-CR (Tex. App.-Waco, decided January 25, 2006).

Applicant contends that his appellate counsel rendered ineffective assistance because counsel failed to timely notify Applicant that his conviction had been affirmed.

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 neither appellate counsel nor Applicant received notice of the court of appeals' opinion until after the time to file a petition of discretionary review had passed. 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 Tenth Court of Appeals in Cause No. 10-05-00247-CR that affirmed his conviction in Case No. 28250CR from the 40th Judicial District Court of Ellis County. Applicant shall file his petition for discretionary review with the Tenth Court of Appeals within 30 days of the date on which this Court's mandate issues.

Applicant's remaining claims are dismissed. Ex Parte Torres, 943 S.W.2d 469 (Tex. Crim. App. 1997).

Delivered: December 20, 2006

Do not publish