Newsome, Ex Parte Raymond David

• Court: Court of Criminal Appeals of Texas
• Decided: June 17, 2009
• Docket: AP-76,170
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

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NO. AP-76,170

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EX PARTE RAYMOND DAVID NEWSOME, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 0994675R

IN THE CRIMINAL DISTRICT COURT NUMBER ONE

FROM TARRANT 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 writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of aggravated robbery and sentenced to twenty years’ imprisonment. The Second Court of Appeals affirmed his conviction. Newsome v. State, No. 02-05-390-CR, 2007 Tex. App. LEXIS 2546 (Tex. App.–Fort Worth Mar. 29, 2007, no pet.).

            During the pendency of his direct appeal, Applicant retained appellate counsel for oral argument at the court of appeals and to file a petition for discretionary review, if necessary. Applicant contends, inter alia, that appellate counsel rendered ineffective assistance because he failed to file a timely petition for discretionary review and did not 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 has entered findings of fact and conclusions of law that appellate counsel failed file a petition for discretionary review and did not timely notify Applicant that his conviction had been affirmed. The trial court concluded that appellate counsel’s inaction denied Applicant his opportunity to prepare and file a petition for discretionary review. 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 Second Court of Appeals in Cause No. 02-05-390-CR that affirmed his conviction in Case No. 0994675R in the Criminal District Court Number One 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.

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

Delivered: June 17, 2009

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