Foster, Ex Parte Billy Ray

• Court: Court of Criminal Appeals of Texas
• Decided: February 27, 2008
• Docket: AP-75,851
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. AP-75,851 EX PARTE BILLY RAY FOSTER, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 21167-A IN THE 42^ND DISTRICT COURT

FROM TAYLOR 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 burglary of a habitation and sentenced to sixty years' imprisonment. The Eleventh Court of Appeals affirmed his conviction. Foster v. State, No. 11-04-00252-CR (Tex. App.-Texarkana, delivered September 29, 2005).

Applicant contends that he was denied his right to file a petition for discretionary review. He states that his counsel filed a petition on his behalf within the proper time frame and before the court of appeals issued its mandate, but the court of appeals did not receive it. Applicant's attorney filed an affidavit with the trial court stating that he mailed the petition for discretionary review to the 11^th Court of Appeals prior to the issuance of a mandate. Based on that affidavit, the trial court recommends granting relief.

We find that Applicant is entitled to the opportunity to file an out-of-time petition for discretionary review of the judgment of the Eleventh Court of Appeals in Cause No. 11-04-00252-CR that affirmed his conviction in Case No. 21167 from the 42nd Judicial District Court of Taylor County. Ex parte Wilson, 956 S.W.2d 25 (Tex. Crim. App. 1997). Applicant shall file his petition for discretionary review with the Eleventh Court of Appeals within 30 days of the date on which this Court's mandate issues.

Delivered: February 27, 2008

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