Johnson, Ex Parte Timothy ( 2010 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. AP-76,419
EX PARTE TIMOTHY JOHNSON, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 114-2867-06 IN THE 114TH DISTRICT COURT
FROM SMITH 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 a 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 Twelfth Court of Appeals affirmed his conviction. Johnson
v. State, No. 12-08-00077-CR (Tex. App.–Tyler Oct. 30, 2010, no pet.).
Applicant contends that his appellate counsel rendered ineffective assistance because he
failed to timely notify Applicant that his conviction had been affirmed. After holding a live
evidentiary hearing, the trial court concluded that through no fault of appellate counsel Applicant
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was denied his right to file a pro se petition for discretionary review. The trial court recommended
that we grant Applicant an out-of-time petition for discretionary review. We agree. Ex parte Riley,
193 S.W.3d 900 (Tex. Crim. App. 2006). 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 Twelfth
Court of Appeals in Cause No. 12-08-00077-CR that affirmed his conviction in Case No. 114-2867-
06 from the 114th Judicial District Court of Smith County. Applicant shall file his petition for
discretionary review with the Twelfth Court of Appeals within 30 days of the date on which this
Court’s mandate issues.
Delivered: September 22, 2010
Do not publish