McGary, Ex Parte David T. A/K/A David Sanders

• Court: Court of Criminal Appeals of Texas
• Decided: June 30, 2010
• Docket: AP-76,368
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

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NO. AP-76,368

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EX PARTE DAVID T. MCGARY, AKA DAVID SANDERS, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 4006 IN THE 46TH DISTRICT COURT

FROM HARDEMAN COUNTY

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           Per curiam.

O P I N I O N

            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 possession of a controlled substance and sentenced to ninety-nine years’ imprisonment. The Seventh Court of Appeals affirmed his conviction. McGary v. State, No. 07-07-00503-CR (Tex. App.–Amarillo 2008, no pet.).

            Applicant contends that his appellate counsel rendered ineffective assistance because counsel failed to advise Applicant of his right to file a pro se petition for discretionary review. On August 19, 2009, we remanded this application and directed the trial court to make findings of fact and conclusions of law and to order appellate counsel to respond to Applicant’s claim. On February 3, 2010, we remanded this application again and directed the trial court to make further findings and conclusions as to whether appellate counsel timely notified Applicant that his conviction had been affirmed. We also directed the trial court to order appellate counsel to file a second response and explain whether he timely advised Applicant that his conviction had been affirmed.

            On the second remand, appellate counsel did not file a response. 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 Seventh Court of Appeals in Cause No. 07-07-00503-CR that affirmed his conviction in Case No. 4006 from the 46th Judicial District Court of Hardeman County. Applicant shall file his petition for discretionary review with the Seventh Court of Appeals within 30 days of the date on which this Court’s mandate issues.

Delivered: June 30, 2010

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