Whinery, Ex Parte Marvin

• Court: Court of Criminal Appeals of Texas
• Decided: December 16, 2009
• Docket: AP-76,267
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. AP-76,267

EX PARTE MARVIN WHINERY, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 23,562 IN THE 217 TH DISTRICT COURT FROM ANGELINA 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 one count of

aggravated sexual assault of a child (count two) and sentenced to thirty years’ imprisonment, and

three counts of indecency with a child and sentenced to twenty years’ imprisonment on count one

and fifteen years’ imprisonment on both counts three and four. The Ninth Court of Appeals affirmed

his conviction. Whinery v. State, No. 09-04-0086-CR (Tex. App.–Beaumont, delivered February 2,

2005). 2

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 had a right to file

a pro se petition for discretionary review. We remanded this application to the trial court for

findings of fact and conclusions of law.

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 Ninth Court of Appeals in Cause No. 09-04-0086-CR that affirmed his conviction in Case No.

23,562 from the 217th Judicial District Court of Angelina County. Applicant shall file his petition

for discretionary review with the Ninth 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Delivered: December 16, 2009 Do not publish