Lilly, Ex Parte Donovan Christopher

• Court: Court of Criminal Appeals of Texas
• Decided: October 31, 2012
• Docket: AP-76,904
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. AP-76,904

EX PARTE DONOVAN CHRISTOPHER LILLY, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 380-82642-08 IN THE 380TH DISTRICT COURT FROM COLLIN 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

assault and sentenced to four years’ imprisonment. The Fifth Court of Appeals affirmed his

conviction. Lilly v. State, No. 05-10-00349-CR (Tex. App.—Dallas Dec. 21, 2011).

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 pro se for discretionary review.

Appellate counsel filed an affidavit with the trial court stating that, though she mailed 2

Applicant notice that his conviction was affirmed and advised him of his right to file a pro-se PDR,

she did not comply with Rule of Appellate Procedure 48.4. Applicant contends he never received

any such notice. The trial court has entered findings of fact and conclusions of law that Applicant

was deprived of his right to pursue a pro-se PDR through no fault of his own. The trial court

recommends that relief be granted, and the State agrees. Ex parte Riley, 193 S.W.3d 900, 902 (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. 05-10-00349-CR

that affirmed his conviction in Cause No. 380-82642-08 from the 380th District Court of Collin

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Delivered: October 31, 2012 Do not publish