Phillips, Ex Parte Toby Dean

• Court: Court of Criminal Appeals of Texas
• Decided: August 26, 2009
• Docket: AP-76,202
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. AP-76,202

EX PARTE TOBY DEAN PHILLIPS, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. W-51842-01-E IN THE 108th DISTRICT COURT FROM POTTER 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 writ of habeas corpus. Ex parte

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

with sex offender registration requirements and sentenced to seven years’ imprisonment. The

Seventh Court of Appeals affirmed his conviction. Phillips v. State, No. 07-06-0118-CR (Tex.

App.–Amarillo, delivered February 28, 2008, no pet.).

Applicant contends, inter alia, that his appellate counsel rendered ineffective assistance

because counsel failed to advise him of his right to file petition for discretionary review pro se. We 2

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 there is insufficient evidence to establish that

counsel timely advised Applicant of his right to petition for discretionary review pro se. 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. 07-06-00118-CR that affirmed his conviction in Cause No. W-51842-

01-E from the 108th Judicial District Court of Potter County. Applicant shall file his petition for

discretionary review with the Seventh Court of Appeals within 30 days of the date on which this

Court’s mandate issues.

All other claims are dismissed. Ex parte Torres, 943 S.W.2d 469 (Tex. Crim. App. 1997).

Delivered: August 26, 2009 Do not publish