EX PARTE GARY DON BACON (other)

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. AP-76,027

EX PARTE GARY DON BACON, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 1057621 IN THE 177TH 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 murder and sentenced to twenty-five years’ imprisonment. The First Court of Appeals affirmed his conviction. Bacon v. State, No. 01-07-00072-CR (Tex. App.–Houston [1st] delivered January 31, 2008).

            Applicant contends that his appellate counsel rendered ineffective assistance because counsel failed to timely notify Applicant that his conviction had been affirmed.

            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 First Court of Appeals in Cause No. 01-07-72-CR that affirmed his conviction in Case No. 1057621 from the 177th 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: November 5, 2008

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