EX PARTE KEVIN MICHAEL NEILL (other)

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NOS. AP-76,046, AP-76,047 & AP-76,048

EX PARTE KEVIN MICHAEL NEILL, Applicant

ON APPLICATIONS FOR WRITS OF HABEAS CORPUS

CAUSE NOS. C-2-008266-0935044-A, C-2-008268-0938485-A

& C-2-008267-0937782-A

IN THE CRIMINAL DISTRICT COURT NO. 2

FROM TARRANT 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 these applications for writs of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of indecency with a child in two causes, and one count of aggravated sexual assault of a child and one count of indecency with a child in the third cause. He was sentenced to twenty years’ imprisonment and fifteen years’ imprisonment in the two indecency causes, and forty years’ imprisonment for the aggravated sexual assault count and fifteen years’ imprisonment for the indecency with a child count in the remaining cause . The Second Court of Appeals affirmed his convictions. Neill v. State, Nos. 02-05-00242-CR, 02-05-00241-CR & 02-05-00240-CR (Tex. App. – Fort Worth, October 5, 2006).             Applicant contends that his appellate counsel rendered ineffective assistance because counsel failed to timely notify Applicant that his convictions 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 of his right to petition for discretionary appeal 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 judgments of the Second Court of Appeals in Cause Nos. 02-05-00242-CR, 02-05-00241-CR and 02-05-00240-CR that affirmed his convictions in Case No. C-2-008266-0935044-A, C-2-008268-0938485-A and C-2-008267-0937782-A from the Criminal District Court No. 2 of Tarrant County. Applicant shall file his petition for discretionary review with the Second Court of Appeals within 30 days of the date on which this Court’s mandate issues.

 

Delivered: November 26, 2008

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