Smith, Kerry C.

• Court: Court of Criminal Appeals of Texas
• Decided: February 27, 2019
• Docket: WR-89,466-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-89,466-01

EX PARTE KERRY C. SMITH, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. W14-39292-Q(A) IN THE 204TH DISTRICT COURT FROM DALLAS 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 continuous sexual

abuse of a child and sentenced to twenty-five years’ imprisonment. The Fifth Court of Appeals

affirmed his conviction. Smith v. State, No, 05-16-01069-CR (Tex. App.—Dallas Mar. 19, 2018)

(not designated for publication).

Applicant contends that his appellate counsel rendered ineffective assistance because counsel

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 2

has entered findings of fact and conclusions of law that Applicant did not receive notice of the

appellate decision through no fault of his own. The trial court recommends that relief be granted. Ex

parte Riley, 193 S.W.3d 900 (Tex. Crim. App. 2006).

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 Fifth Court of Appeals in Cause No. 05-16-01069-CR

that affirmed his conviction in Cause No. F-1439292-Q from the 204th District Court of Dallas

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Delivered: February 27, 2019 Do not publish