Underwood, David Fitzgerald AKA Underwood, David AKA Underwood, David F.

• Court: Court of Criminal Appeals of Texas
• Decided: March 2, 2016
• Docket: WR-84,575-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-84,575-01

EX PARTE DAVID FITZGERALD UNDERWOOD, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 1408488-A IN THE 185TH DISTRICT COURT FROM HARRIS 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 possession of a

controlled substance and sentenced to forty years’ imprisonment. The Fourteenth Court of Appeals

affirmed his conviction. Underwood v. State, No. 14-14-00453-CR (Tex. Crim. App.—Houston [14th

Dist] Dec. 11, 2014).

Applicant contends that his appellate counsel rendered ineffective assistance because counsel

failed to timely notify Applicant that his conviction had been affirmed. Appellate counsel filed an 2

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. 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 Fourteenth Court of Appeals in Cause No. 14-14-

453-CR that affirmed his conviction in Cause No. 1408488 from the 185th District Court of Harris

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Delivered: March 2, 2016 Do not publish