EX PARTE TRACY BERNARD MILES (original)

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. AP-75,902

EX PARTE TRACY BERNARD MILES, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 1020224 IN THE 248TH DISTRICT COURT

FROM HARRIS COUNTY

           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 burglary of a habitation and sentenced to thirty-five years’ imprisonment. The First Court of Appeals affirmed his conviction. Miles v. State, No. 01-05-00346-CR (Tex. App.–Houston [1st], delivered October 12, 2006).

            Applicant contends that his appellate counsel rendered ineffective assistance because counsel failed to timely notify Applicant that his conviction had been affirmed and of his right to petition for discretionary review pro se. Applicant contends that he did not receive a letter from counsel informing him that his appeal had been affirmed until after the deadline to file a petition for discretionary review had passed.

            Appellate counsel filed an affidavit with the trial court. Based on that affidavit, the trial court has entered findings of fact that appellate counsel sent a letter informing Applicant that his appeal was affirmed and that he had a right to file a pro se petition for discretionary review on Thursday, November 9, 2006. Counsel’s affidavit states that this letter was sent via certified mail, return receipt requested. Applicant’s deadline for filing a petition for discretionary review was Monday, November 13, 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 First Court of Appeals in Cause No. 01-05-00346-CR that affirmed his conviction in Case No. 1020224 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: April 30, 2008

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