Peake, Ex Parte Jonathan Shane Ross ( 2010 )

  IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

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  NO. AP-76,465

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EX PARTE JONATHAN SHANE ROSS PEAKE, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 01-08-05233-CR IN THE 359TH DISTRICT COURT

FROM MONTGOMERY 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 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 thirty years’ imprisonment. The Seventh Court of Appeals affirmed his conviction. Peake v. State, No. 07-03-00216-CR (Tex. App.–Amarillo 2004, no pet.).

            Applicant contends that his appellate counsel rendered ineffective assistance because, among other things, he 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. 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 rendered ineffective assistance. 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 Seventh Court of Appeals in Cause No. 07-03-00216-CR that affirmed his conviction in Case No. 01-08-05233-CR from the 359th Judicial District Court of Montgomery County. Applicant shall file his petition for discretionary review with the Seventh Court of Appeals within 30 days of the date on which this Court’s mandate issues.

Delivered: December 8, 2010

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