Huddleston, Ex Parte Zachary ( 2009 )

  IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

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  NO. AP-76,116

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EX PARTE ZACHARY HUDDLESTON, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. B-31,380-A IN THE 161^ST JUDICIAL DISTRICT COURT

FROM ECTOR COUNTY

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           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 writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of capital murder and sentenced to life imprisonment. The Eleventh Court of Appeals affirmed his conviction. Huddleston v. State, No. 11-05-00198-CR (Tex. App. – Eastland, June 7, 2007).

            Applicant contends that his appellate counsel rendered ineffective assistance because counsel failed to timely notify Applicant that his conviction had been affirmed and failed to advise him of his right to petition for discretionary review pro se. We remanded this application to the trial court for findings of fact and conclusions of law.

            The trial court appointed habeas counsel and conducted a hearing, at which Applicant’s appellate counsel testified. Based on the record and the testimony at the hearing, 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 and failed to advise him of his right to petition for discretionary appeal 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 Eleventh Court of Appeals in Cause No. 11-05-00198-CR that affirmed his conviction in Case No. B-31,380-A from the 161^st Judicial District Court of Ector County. Applicant shall file his petition for discretionary review with the Eleventh Court of Appeals within 30 days of the date on which this Court’s mandate issues.

Delivered: March 18, 2009

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