EX PARTE TRACY J. HOWARD (other)
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IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. AP-76,621
EX PARTE TRACY J. HOWARD, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 19151 IN THE 356TH DISTRICT COURT
FROM HARDIN 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 marijuana, over 50 pounds, and sentenced to twenty years' imprisonment. The Ninth Court of Appeals affirmed his conviction. Howard v. State, No. 09-09-00203-CR (Tex. App.-Beaumont, May 12, 2010).
Applicant contends that his appellate counsel rendered ineffective assistance because counsel failed to timely notify Applicant that his conviction had been affirmed. Counsel submitted a response stating that he timely mailed a letter to Applicant informing him that his conviction was affirmed and that he had a right to file a pro se petition for discretionary review. Applicant 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 to determine whether Applicant received the letter from counsel.
The applicable mail logs from the Texas Department of Criminal Justice have been submitted to the trial court. Based on those logs, the trial court has entered findings of fact and conclusions of law that Applicant did not receive the letter from appellate counsel. Applicant is entitled to relief based not on ineffective assistance of counsel, but rather on a break-down in the system. Ex parte Riley, 193 S.W.3d 900 (Tex. Crim. App. 2006).
We find that Applicant is entitled to the opportunity to file an out-of-time petition for discretionary review of the judgment of the Ninth Court of Appeals in Cause No. 09-09-00203-CR that affirmed his conviction in Case No. 19151 from the 356th Judicial District Court of Hardin 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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