Smith, Ex Parte Elzie

• Court: Court of Criminal Appeals of Texas
• Decided: January 11, 2012
• Docket: AP-76,708
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. AP-76,708

EX PARTE ELZIE SMITH, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 2004F00127A IN THE 5TH DISTRICT COURT FROM CASS 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 possession of a

controlled substance and sentenced to fifty years’ imprisonment. The Sixth Court of Appeals

affirmed his conviction. Smith v. State, No. 06-06-00189-CR (Tex. App.–Texarkana, Oct. 25, 2007).

Applicant contends that his appellate counsel failed to timely notify Applicant that his

conviction had been affirmed. We remanded this application to the trial court for findings of fact

and conclusions of law. 2

The record shows that appellate counsel failed to timely notify Applicant that his conviction

had been affirmed. 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 Sixth Court of Appeals in Cause No. 06-06-00189-CR that affirmed his

conviction in Case No. 2004F00127 from the 5th Judicial District Court of Cass 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Delivered: January 11, 2012 Do not publish