Wilmore, Ex Parte Danny Rashon

• Court: Court of Criminal Appeals of Texas
• Decided: April 18, 2007
• Docket: AP-75,656
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. AP-75,656 EX PARTE DANNY RASHON WILMORE, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. F00-55264-NV IN THE 292^ND DISTRICT COURT

FROM DALLAS 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 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 aggravated robbery and sentenced to forty years' imprisonment. The Fifth Court of Appeals affirmed his conviction. Wilmore v. State, No. 05-01-01399-CR (Tex. App.-Dallas, delivered October 23, 2002, pet. dism'd).

Applicant contends that his appellate counsel rendered ineffective assistance because counsel failed to advise him of his right to file a petition for discretionary review pro se and, after agreeing to file a petition for discretionary review pro bono, failed to timely file the petition.

Appellate counsel filed an affidavit with the trial court. Based on that affidavit and the record, the trial court has entered findings of fact and conclusions of law that appellate counsel failed to timely file a petition for discretionary review on Applicant's behalf and failed to advise Applicant 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 an out-of-time petition for discretionary review of the judgment of the Fifth Court of Appeals in Cause No. 05-01-01399-CR that affirmed his conviction in Case No. F00-55264-NV from the 292^nd Judicial District Court of Dallas County. Applicant shall file his petition for discretionary review with the Fifth Court of Appeals within 30 days of the date on which this Court's mandate issues.

Delivered: April 18, 2006

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