Kincade, Ex Parte Delbert Alonzo

• Court: Court of Criminal Appeals of Texas
• Decided: September 21, 2011
• Docket: AP-76,640
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. AP-76,640

EX PARTE DELBERT ALONZO KINCADE, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 241-0002-08-A IN THE 241ST JUDICIAL DISTRICT COURT FROM SMITH 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 injury to a child

and sentenced to life imprisonment. The Twelfth Court of Appeals affirmed his conviction.

Kincade v. State, No. 12-08-00247-CR (Tex. App. – Tyler, December 16, 2009).

Applicant contends 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 for discretionary review pro se. 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 Twelfth Court of

Appeals in Cause No. 12-08-00247-CR that affirmed his conviction in Case No. 241-0002-08-A

from the 241st Judicial District Court of Smith 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.

Delivered: September 21, 2011 Do not publish