Guy, Ex Parte Lester J. Jr. ( 2008 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. AP-75,913
EX PARTE LESTER J. GUY, JR., Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 906044-A IN THE 248TH DISTRICT COURT
FROM HARRIS 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 possession of a
controlled substance and sentenced to thirty (30) years’ imprisonment. The First Court of Appeals
affirmed his conviction. Guy v. State, No. 01-02-01099-CR, (Tex. App. – Houston [First Dist.]
2004) (Not designated for publication).
Applicant contends that his appellate counsel rendered ineffective assistance because counsel
failed to advise him that his conviction had been affirmed and that he had a right to file a pro se
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petition for discretionary review.
On April 3, 2008, the trial judge conducted a habeas hearing concerning the merits of
Applicant’s claim. At the hearing, Applicant testified that he did not find out that his appeal had
been affirmed and that he had a right to file a pro se petition for discretionary review until after the
deadline to file a petition had passed. Applicant also testified that appellate counsel is deceased.
The trial judge found that appellate counsel failed to advise Applicant that his appeal had been
affirmed and that he had a right to file a pro se petition for discretionary review. The trial judge
recommended that relief be granted. Ex parte Wilson, 956 S.W.2d 25 (Tex. Crim. App. 1997).
We find that Applicant is entitled to the opportunity to file an out-of-time petition for
discretionary review of the judgment of the First Court of Appeals in Cause No. 01-02-01099-CR
that affirmed his conviction in Case No. 906044 from the 248th Judicial District Court of Harris
County. Applicant shall file his petition for discretionary review with the First Court of Appeals
within 30 days of the date on which this Court’s mandate issues.
Delivered: May 7, 2008
Do not publish