McGee, Ex Parte Larry James

• Court: Court of Criminal Appeals of Texas
• Decided: November 21, 2012
• Docket: AP-76,922
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. AP-76,922 EX PARTE LARRY JAMES MCGEE, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 3611-B IN THE 100TH DISTRICT COURT

FROM CARSON COUNTY

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 marihuana and sentenced to twenty-five years' imprisonment. The Seventh Court of Appeals affirmed his conviction. McGee v. State, No. 07-08-00211-CR (Tex. App. - Amarillo, March 6, 2009).

Applicant contends, inter alia, 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. 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. Based on that affidavit, the trial court has entered findings of fact and conclusions of law 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 review 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 Seventh Court of Appeals in Cause No. 07-08-00211-CR that affirmed his conviction in Cause No. 3611-B from the 100th District Court of Carson 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.

Applicant's remaining claims are dismissed. See Ex parte Torres, 943 S.W.2d 469 (Tex. Crim. App. 1997).

Delivered: November 21, 2012

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