Leslie Kenneth Holte, II v. State

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-83,362-02

EX PARTE LESLIE KENNETH HOLTE, II, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 1318785-A IN THE 263RD 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 injury to a child

and sentenced to twenty years’ imprisonment. The First Court of Appeals affirmed his conviction.

Holte v. State, No. 01-12-00338-CR (Tex. App. — Houston [1st Dist.] October 1, 2013)(not

designated for publication).

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 2

his right to petition pro se for discretionary review. We remanded this application to the trial court

for findings of fact and conclusions of law.

Appellate counsel filed an affidavit with the trial court. In addition, the trial court has

obtained copies of the mail logs from the prison unit where Applicant was confined during the

applicable period. Based on the affidavit and the mail logs, the trial court has entered findings of

fact and conclusions of law that although appellate counsel timely notified Applicant that his

conviction had been affirmed and that he had the right to file petition for discretionary review pro

se, Applicant never received the notification, due to a “breakdown in the system.” See 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 Court of Appeals in Cause No. 01-12-00338-CR that

affirmed his conviction in Cause No. 1318785 from the 263rd 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.

Delivered: November 4, 2015 Do not publish