Lott, Ex Parte Terry Lee

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

NO. AP-76,045

EX PARTE TERRY LEE LOTT, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 6809-A IN THE 33 RD JUDICIAL DISTRICT COURT FROM BURNET 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 aggravated sexual assault of a child and sentenced to ninety-nine years’ imprisonment. The Third Court of Appeals affirmed his conviction. Lott v. State, No. 03-90-00038-CR (Tex. App. – Austin, April 8, 1992).

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. We remanded this application to the trial court

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for findings of fact and conclusions of law.

Based on documents already contained in the record, the trial court has entered findings of fact and conclusions of law that there is nothing to dispute Applicant’s claim 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 appeal 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 Third Court of Appeals in Cause No. 03-90-0038-CR that affirmed his conviction in Case No. 6809-A from the 33rd Judicial District Court of Burnet County. Applicant shall file his petition for discretionary review with the Third Court of Appeals within 30 days of the date on which this Court’s mandate issues.

Delivered: November 26, 2008 Do not publish