Mullen, Ex Parte Larry Wayne Jr.

• Court: Court of Criminal Appeals of Texas
• Decided: May 12, 2004
• Docket: AP-74,946
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. 74,946 EX PARTE LARRY WAYNE MULLEN, JR., Applicant

ON APPLICATION FOR WRIT OF HABEAS CORPUS

FROM JOHNSON COUNTY

Per Curiam.

OPINION

This is an application for a writ of habeas corpus which was transmitted to this Court by the clerk of the trial court pursuant to the provisions of Article 11.07, Section 3, of the Texas Code of Criminal Procedure. Ex Parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of manslaughter. His sentence was assessed at twenty years imprisonment and a fine in the amount of $10,000. His conviction was affirmed on October 9, 2002. Mullen v. State, No. 10-01-00303-CR (Tex. App. -- Waco, 2002). Applicant's petition for discretionary review was struck by this Court March 5, 2003 because he failed to comply with Texas Rules of Appellate Procedure 68.4(i) and 68.5. Mullen v. State, PDR No. 2069-02. However, this Court granted Applicant thirty days from the date of the order to redraw his petition.

In his application for a writ of habeas corpus, Applicant contends that he was denied his right to re-draw his pro se petition for discretionary review following this Court's order striking his petition because he never received a copy of the order.

After a review of the record, we hold that Applicant was denied his right to re-draw his pro se petition for discretionary review; as a result, Applicant is granted leave to file an out-of-time petition for discretionary review from the Court of Appeals' judgment in cause number 10-01-00303-CR affirming his conviction in cause number F34755 from the 249th Judicial District Court of Johnson County, Texas. Applicant shall file his petition for discretionary review with the Court of Appeals within thirty days of the issuance of this Court's mandate.

DELIVERED: May 12, 2004

DO NOT PUBLISH