Guy, Ex Parte Lester J. Jr.

• Court: Court of Criminal Appeals of Texas
• Decided: May 7, 2008
• Docket: AP-75,913
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. AP-75,913

EX PARTE LESTER J. GUY, JR., Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 906044-A IN THE 248TH 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 writ of habeas corpus. Ex parte

Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of possession of a

controlled substance and sentenced to thirty (30) years’ imprisonment. The First Court of Appeals

affirmed his conviction. Guy v. State, No. 01-02-01099-CR, (Tex. App. – Houston [First Dist.]

2004) (Not designated for publication).

Applicant contends that his appellate counsel rendered ineffective assistance because counsel

failed to advise him that his conviction had been affirmed and that he had a right to file a pro se Guy -- 2

petition for discretionary review.

On April 3, 2008, the trial judge conducted a habeas hearing concerning the merits of

Applicant’s claim. At the hearing, Applicant testified that he did not find out that his appeal had

been affirmed and that he had a right to file a pro se petition for discretionary review until after the

deadline to file a petition had passed. Applicant also testified that appellate counsel is deceased.

The trial judge found that appellate counsel failed to advise Applicant that his appeal had been

affirmed and that he had a right to file a pro se petition for discretionary review. The trial judge

recommended that relief be granted. Ex parte Wilson, 956 S.W.2d 25 (Tex. Crim. App. 1997).

We find 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. 01-02-01099-CR

that affirmed his conviction in Case No. 906044 from the 248th Judicial District Court of Harris

County. Applicant shall file his petition for discretionary review with the First Court of Appeals

within 30 days of the date on which this Court’s mandate issues.

Delivered: May 7, 2008 Do not publish