Parker, Ex Parte Delmar Lee ( 2006 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. AP-75,517

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EX PARTE DELMAR LEE PARKER, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. CR20,703 IN THE 20^TH DISTRICT COURT

MILAM COUNTY

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   Per curiam.

O P I N I O N

   This is a post-conviction application for a writ of habeas corpus forwarded to this Court pursuant to Tex. Code Crim. Proc. art. 11.07, § 3, et seq.. Applicant was convicted of the felony offense of possession of a controlled substance, and punishment was assessed at twenty (20) years' confinement. Applicant's conviction was affirmed on appeal. Parker v. State, No. 03-04-00133-CR (Tex. App. - Austin, delivered October 24, 2005, no pet.).

Applicant contends, inter alia, that he was denied the opportunity to petition for discretionary review because he never received notice of the decision on appeal from appellate counsel. The record supports this claim. The trial court finds that applicant's attorney did send notice that applicant's conviction had been affirmed. The record supports this finding. However, it appears that applicant did not receive the notice. Counsel's letters to applicant contain the incorrect TDCJ number, an affidavit from an employee at the TDCJ mail room shows that applicant did not receive any mail during the relevant time period, and the State has agreed that it appears that applicant did not receive notice of the decision on appeal. 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 Third Court of Appeals in Cause No. 03-04-00133-CR that affirmed his conviction in this cause.  

Habeas corpus relief is granted and Applicant is granted the opportunity to file an out-of-time petition for discretionary review from his conviction in cause number CR20,703 in the 20^th District Court of Milam County. The proper remedy in a case such as this is to return Applicant to the point at which he can file a petition for discretionary review. We hold that Applicant, should he desire to file a petition for discretionary review, must file his petition for discretionary review with the Third Court of Appeals within thirty (30) days of the date on which this Court's mandate issues. All other claims are dismissed. See Ex parte Torres, 943 S.W.2d 469 (Tex. Crim. App. 1997).  

  DO NOT PUBLISH

DELIVERED: September 27, 2006