Lumpkin, Ex Parte Leroy

• Court: Court of Criminal Appeals of Texas
• Decided: March 23, 2005
• Docket: AP-75,118
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. AP-75,118 EX PARTE LEROY LUMPKIN, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NUMBER 900156 IN THE 232^ND JUDICIAL DISTRICT COURT

HARRIS COUNTY

Per Curiam.

O P I N I O N

This is a post-conviction application for a writ of habeas corpus forwarded to this Court pursuant to Tex. Code Crim. Proc. art. 11.07. Applicant was convicted of the felony offense of possession of a controlled substance, and punishment was assessed at imprisonment for 37 years. Applicant appealed, and his conviction was affirmed. Lumpkin v. State, No. 01-02-00782-CR (Tex. App. -- Houston, delivered January 8, 2004, no pet.).

Applicant contends that he was denied an opportunity to file a petition for discretionary review because his appellate attorney did not timely notify him of the correct deadline for filing a petition for discretionary review. The trial court, based upon an affidavit from appellate counsel, found that Applicant was denied effective assistance of counsel on appeal. The record reflects that counsel did not timely inform Applicant of the correct deadline for filing a petition for discretionary review from his conviction.

Habeas corpus relief is granted and Applicant is granted leave to file an out-of-time petition for discretionary review from his conviction in cause number 900156 from the 232 Judicial District Court of Harris County. Applicant is ordered returned to the point at which he can file a meaningful petition for discretionary review. For purposes of the Texas Rules of Appellate Procedure, all time limits shall be calculated as if the court of appeals' decision had been rendered on the day the mandate of this Court issues. We hold that should Applicant desire to seek discretionary review, he must take affirmative steps to see that his petition is filed in the Court of Appeals within thirty days of the date the mandate of this Court has issued.

DELIVERED: March 23, 2005

DO NOT PUBLISH