Vanderbilt, Ex Parte Keith Bernard ( 2010 )

  IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

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  NO. AP-76,410

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EX PARTE KEITH BERNARD VANDERBILT, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 16232B IN THE 104^TH DISTRICT COURT

FROM TAYLOR 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 writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of one count of attempted sexual assault and one count of sexual assault and sentenced to twenty years’ and life imprisonment, respectively. Vanderbilt v. State, No. 11-08-00121-CR (Tex. App.–Eastland, Sep. 10, 2009, no pet.) (not designated for publication).

            Applicant contends that his appellate counsel rendered ineffective assistance because counsel failed to timely notify Applicant that his conviction had been affirmed. We remanded this application to the trial court for 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 that his conviction had been affirmed. 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 Eleventh Court of Appeals in Cause No. 11-08-00121-CR that affirmed his conviction in Case No. 16232B from the 104th Judicial District Court of Taylor County. Applicant shall file his petition for discretionary review with the Eleventh Court of Appeals within 30 days of the date on which this Court’s mandate issues.

Delivered: September 15, 2010

Do not publish