John James Smith v. State

• Court: Court of Appeals of Texas
• Decided: April 15, 2015
• Docket: 01-11-01114-CR
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-82,501-02

EX PARTE JOHN JAMES SMITH, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 1234109-A 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 aggravated

robbery and sentenced to forty-five years’ imprisonment. The First Court of Appeals affirmed his

conviction. Smith v. State, No. 01-11-01114-CR (Tex. App.—Houston [1st Dist.] May 30, 2013) (not

designated for publication).

Applicant contends, among other things, that his appellate counsel rendered ineffective

assistance because counsel failed to timely notify Applicant that his conviction had been affirmed

and failed to advise him of his right to petition pro se for discretionary review. 2

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 appellate counsel failed to timely notify

Applicant that his conviction had been affirmed and failed to advise him of his right to petition for

discretionary review pro se. 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. 01-11-01114-CR

that affirmed his conviction in Cause No. 1234109 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. Applicant’s remaining claims are dismissed without prejudice.

Ex parte Torres, 943 S.W.2d 469, 472–74 (Tex. Crim. App. 1997).

Delivered: April 15, 2015 Do not publish