Stillwell, Ex Parte Gerald Wayne

• Court: Court of Criminal Appeals of Texas
• Decided: December 13, 2006
• Docket: AP-75,566
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. AP-75,566 and AP-75,567 EX PARTE GERALD WAYNE STILLWELL, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NOS. W401-81611-03 AND W401-81281-04

IN THE 401ST DISTRICT COURT FROM COLLIN 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 writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of two counts of burglary of habitation and sentenced to eighteen (18) years' imprisonment for one count and twenty (20) years' imprisonment for the other count. The Fifth Court of Appeals affirmed his convictions. Stillwell v. Texas, Nos. 05-04-01788-CR and 05-05-00156-CR, (Tex. App.- Dallas, December 22, 2005, no pet.) (not designated for publication).

Applicant contends that his appellate counsel rendered ineffective assistance because counsel failed to advise him of his right to file petition for discretionary review pro se.

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 to advise him of his right to petition for discretionary review pro se. 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 out-of-time petitions for discretionary review of the judgments of the Fifth Court of Appeals in Cause Nos. 05-04-01788-CR and 05-05-00156-CR that affirmed his convictions in Case Nos. 401-81611-03 and 401-81281-04 from the 401st Judicial District Court of Collin County, Texas. Applicant shall file his petitions for discretionary review with the Fifth Court of Appeals within 30 days of the date on which this Court's mandate issues.

Delivered: December 13, 2006

Do not publish