Neill, Ex Parte Kevin Michael

• Court: Court of Criminal Appeals of Texas
• Decided: November 26, 2008
• Docket: AP-76,048
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NOS. AP-76,046, AP-76,047 & AP-76,048

EX PARTE KEVIN MICHAEL NEILL, Applicant

ON APPLICATIONS FOR WRITS OF HABEAS CORPUS CAUSE NOS. C-2-008266-0935044-A, C-2-008268-0938485-A & C-2-008267-0937782-A IN THE CRIMINAL DISTRICT COURT NO. 2 FROM TARRANT 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 these applications for writs of habeas corpus. Ex

parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of indecency

with a child in two causes, and one count of aggravated sexual assault of a child and one count of

indecency with a child in the third cause. He was sentenced to twenty years’ imprisonment and

fifteen years’ imprisonment in the two indecency causes, and forty years’ imprisonment for the

aggravated sexual assault count and fifteen years’ imprisonment for the indecency with a child count 2

in the remaining cause . The Second Court of Appeals affirmed his convictions. Neill v. State, Nos.

02-05-00242-CR, 02-05-00241-CR & 02-05-00240-CR (Tex. App. – Fort Worth, October 5, 2006).

Applicant contends that his appellate counsel rendered ineffective assistance because counsel

failed to timely notify Applicant that his convictions had been affirmed and failed to advise him of

his right to petition for discretionary review pro se.

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 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

judgments of the Second Court of Appeals in Cause Nos. 02-05-00242-CR, 02-05-00241-CR and

02-05-00240-CR that affirmed his convictions in Case No. C-2-008266-0935044-A, C-2-008268-

0938485-A and C-2-008267-0937782-A from the Criminal District Court No. 2 of Tarrant County.

Applicant shall file his petition for discretionary review with the Second Court of Appeals within

30 days of the date on which this Court’s mandate issues.

Delivered: November 26, 2008 Do not publish