Johnson, Larry B. v. State

• Court: Court of Appeals of Texas
• Decided: December 12, 2019
• Docket: 05-09-01033-CR
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-88,210-06

EX PARTE LARRY B. JOHNSON, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. W09-00662-H(B) IN THE CRIMINAL DISTRICT COURT NO.1 FROM DALLAS 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 pleaded guilty to sexual assault of

a child and was sentenced to twenty years’ imprisonment. The Fifth Court of Appeals affirmed his

conviction. Johnson v. State, No. 05-09-01033-CR (Tex. App. — Dallas, May 26, 2010) (not

designated for publication).

Applicant contends, among other things, that he was denied the right to petition this Court

for discretionary review because he did not receive timely notification that his conviction had been

affirmed. We remanded this application to the trial court for findings of fact and conclusions of law. 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 Applicant was denied the opportunity to file

a petition for discretionary review through no fault of his own or of appellate counsel, but because

of a breakdown in the system. The trial court recommends that relief be granted. Ex parte Riley, 193

S.W.3d 900 (Tex. Crim. App. 2006).

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 Fifth Court of Appeals in Cause No. 05-09-01033-CR

that affirmed his conviction in Cause No. F09-00662-LH from the Criminal District Court No. 1 of

Dallas 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. See Ex parte Torres, 943 S.W.2d 469 (Tex.

Crim. App. 1997).

Delivered: December 11, 2019 Do not publish