Nelson, Ex Parte Ladell Ontwell

• Court: Court of Criminal Appeals of Texas
• Decided: March 27, 2013
• Docket: AP-77,001
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. AP-77,001

EX PARTE LADELL ONTWELL NELSON, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 1235307 IN THE 183rd DISTRICT COURT FROM HARRIS 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 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 with intent to deliver and sentenced to fifteen years’ imprisonment. The First

Court of Appeals affirmed his conviction. Nelson v. State, No. 01-10-00783-CR (Tex. App.–Houston

[1st Dist.], delivered October 27, 2011, no pet.).

Applicant contends that his appellate counsel rendered ineffective assistance because counsel

failed to timely notify Applicant that his conviction had been affirmed.

Appellate counsel filed an affidavit with the trial court. Based on that affidavit, the trial court 2

has entered findings of fact and conclusions of law that there was a breakdown in the system and the

Applicant did not receive notification that his conviction had been affirmed. The trial court

recommends that relief be granted. We agree with the trial court that the Applicant is entitled to

relief. However, counsel admits in his affidavit that he did not comply with the requirements of Rule

48.4 of the Texas Rules of Appellate Procedure when he attempted to notify the Applicant of the

appellate court’s decision. Therefore, the record reflects that Applicant was deprived of his right to

pursue discretionary review on his own due to counsel’s failure to send proper notification. 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 First Court of Appeals in Cause No. 01-10-00783-CR

that affirmed his conviction in Cause No. 1235307 from the 183rd District Court of Harris 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.

Delivered: March 27, 2013 Do not publish