Smith, Ex Parte Brian Lynn

• Court: Court of Criminal Appeals of Texas
• Decided: March 12, 2008
• Docket: AP-75,867
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NOS. AP-75,866 & AP-75,867 EX PARTE BRIAN LYNN SMITH, Applicant

ON APPLICATIONS FOR WRITS OF HABEAS CORPUS

CAUSE NOS. 09839-A & 09840-A IN THE 29^TH JUDICIAL DISTRICT COURT

FROM PALO PINTO COUNTY

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 these applications for writs of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of murder and attempted murder and sentenced to life imprisonment in each case. The Eleventh Court of Appeals affirmed his convictions. Smith v. Texas, Nos. 11-94-00017-CR & 11-94-00018-CR (Tex. App. - Eastland, February 2, 1995, no pet.)

Applicant contends, inter alia, that his appellate counsel rendered ineffective assistance because counsel failed to advise him of his right to petition this Court for discretionary review pro se. We remanded these applications 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 an order finding no controverted, previously unresolved facts material to the legality of Applicant's confinement. However, the record after remand indicates that although appellate counsel timely informed Applicant that the court of appeals had affirmed his convictions, he did not inform Applicant specifically that he could file a pro se petition for discretionary review. Ex parte Wilson, 956 S.W.2d 25 (Tex. Crim. App. 1997). We find, therefore, that Applicant is entitled to the opportunity to file out-of-time petitions for discretionary review of the judgment of the Eleventh Court of Appeals in Cause Nos. 11-94-00017-CR and 11-94-00018-CR that affirmed his convictions in Cause Nos. 09839-A and 09840-A from the 29th Judicial District Court of Palo Pinto County. Applicant shall file his petition(s) for discretionary review with the Eleventh Court of Appeals within 30 days of the date on which this Court's mandate issues.

Delivered: March 12, 2008

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