Opinion
NO. AP-76,640
09-21-2011
EX PARTE DELBERT ALONZO KINCADE, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 241-0002-08-A IN THE 241ST JUDICIAL 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 writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of injury to a child and sentenced to life imprisonment. The Twelfth Court of Appeals affirmed his conviction. Kincade v. State, No. 12-08-00247-CR (Tex. App. - Tyler, December 16, 2009).
Applicant contends that his appellate counsel rendered ineffective assistance because counsel 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 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. 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 Twelfth Court of Appeals in Cause No. 12-08-00247-CR that affirmed his conviction in Case No. 241-0002-08-A from the 241st Judicial District Court of Smith County. Applicant shall file his petition for discretionary review with this Court within 30 days of the date on which this Court's mandate issues.
Do not publish