EX PARTE KEITH ASHLEY HUBBARD (other)

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. AP-76,622

EX PARTE KEITH ASHLEY HUBBARD, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 08F0792-005-A IN THE 5th DISTRICT COURT

FROM BOWIE 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 seven counts of aggravated sexual assault of a child. The Applicant was sentenced to fifty years' imprisonment for each of the seven counts, the sentences to run consecutively. The Sixth Court of Appeals affirmed his conviction. Hubbard v. State, No. 06-09-00090-CR (Tex. App.-Texarkana, delivered May 7, 2010, no pet.).

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. The trial court, after obtaining an affidavit from counsel, recommended that relief be denied. However, the Applicant also alleges that during the applicable time frame, the mail room at his facility did not receive any mail from counsel addressed to Applicant. We remanded this application to the trial court for additional findings of fact and conclusions of law.

The Texas Department of Criminal Justice - Institutional Division filed an affidavit with the trial court. Based on that affidavit, the trial court has entered findings of fact and conclusions of law that Applicant did not receive the correspondence sent by counsel advising him that his conviction had been affirmed and of his right to petition for discretionary review pro se. The Applicant is entitled to relief. Ex parte Riley, 193 S.W.3d 900 (Tex. Crim. App. 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 Sixth Court of Appeals in Cause No. 0-09-00090-CR that affirmed his conviction in Case No. 08F0792-005-A from the 5th Judicial District Court of Bowie 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.

Delivered: September 14, 2011

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