Swaim, Ex Parte David Lee Jr.

• Court: Court of Criminal Appeals of Texas
• Decided: August 26, 2009
• Docket: AP-76,205
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. AP-76,205

EX PARTE DAVID LEE SWAIM JR., Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. F2005-1851-E IN THE 367 TH DISTRICT COURT FROM DENTON 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 murder and

sentenced to life imprisonment. The Second Court of Appeals affirmed his conviction. Swaim v.

State, No. 02-07-165-CR (Tex. App.–Ft. Worth, delivered March 13, 2008).

Applicant contends that his appellate counsel rendered ineffective assistance because counsel

failed to timely notify Applicant that his conviction had been affirmed and that he could file a pro

se petition for discretionary review. 2

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 timely notify

Applicant that his conviction had been affirmed. 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 an out-of-time petition for discretionary review of the judgment of

the Second Court of Appeals in Cause No. 02-07-165-CR that affirmed his conviction in Case No.

F2005-1851-E from the 267th Judicial District Court of Denton County. Applicant shall file his

petition for discretionary review with the Second Court of Appeals within 30 days of the date on

which this Court’s mandate issues.

Applicant’s remaining claims are dismissed. Ex parte Torres, 943 S.W.2d 469 (Tex. Crim.

App. 1997).

Delivered: August 26, 2009 Do not publish