EX PARTE ALBERT O BRYANT TWYMAN (other)

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. AP-75,975

EX PARTE ALBERT O’BRYANT TWYMAN, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 954761-B IN THE 208th 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 possession of a controlled substance and sentenced to forty-five years’ imprisonment. The 14th Court of Appeals affirmed his conviction. Twyman v. State, No. 14-04-00878-CR (Tex. App.–14th [14th Dist.], delivered May 30, 2006, no pet.).

            Applicant contends that his appellate counsel rendered ineffective assistance because counsel promised him that he would file a petition for discretionary review on his behalf and then failed to do so.

            Appellate counsel, who is also habeas counsel in this cause, filed an affidavit with the trial court. Based on that affidavit, the trial court has entered findings of fact that Applicant desired and expected counsel to file a petition for discretionary review on his behalf, and no petition was filed. 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 14th Court of Appeals in Cause No. 14-04-00878-CR that affirmed his conviction in Case No. 954761-B from the 208th Judicial District Court of Harris County. Applicant shall file his petition for discretionary review with the 14th Court of Appeals within 30 days of the date on which this Court’s mandate issues.

 

Delivered: August 20, 2008

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