Foley, Ex Parte Albert Jr. ( 2011 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. AP-76,659
EX PARTE ALBERT FOLEY, JR., Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 16682 IN THE 329TH DISTRICT COURT
FROM WHARTON 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 driving while
intoxicated and sentenced to twenty-five years’ imprisonment. The Thirteenth Court of Appeals
affirmed his conviction. Foley v. State, 327 S.W.3d 907 (Tex. App.–Corpus Christi 2010).
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
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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 of his right to file a pro se petition for discretionary review. 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 Thirteenth Court of Appeals in Cause No. 13-09-00473-CR that affirmed his
conviction in Case No. 16682 from the 329th Judicial District Court of Wharton 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.
Applicant’s remaining claims are dismissed. Ex Parte Torres, 943 S.W.2d 469 (Tex. Crim.
App. 1997).
Delivered: October 12, 2011
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