CAVITT, DERRICK T. Appeal from 396TH DISTRICT COURT of Tarrant County (other per curiam)
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IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-89,387-01 EX PARTE DERRICK T. CAVITT, Applicant ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. C-396-W011341-1194940-A IN THE 396TH DISTRICT COURT FROM TARRANT COUNTY Per curiam. OPINION 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 a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of aggravated assault on a public servant and sentenced to thirty years’ imprisonment. The Second Court of Appeals affirmed his conviction. Cavitt v. State, No. 02-12-00105-CR (Tex. App.—Ft. Worth Dec. 21, 2012)(not designated for publication). Applicant contends that his appellate counsel rendered ineffective assistance because counsel failed to timely notify Applicant that his motion for rehearing to the appellate court had been denied. Appellate counsel filed an affidavit with the trial court stating that he timely notified 2 Applicant of the denial, but could not verify that Applicant ever received the letter from prison authorities. Based on that affidavit, the trial court has entered findings of fact and conclusions of law that Applicant be granted an out of time petition for discretionary review in the interest of justice. The trial court recommends that relief be granted. Ex parte Riley, 193 S.W.3d 900 (Tex. Crim. App. 2003). We find that, based on a break down in the system, Applicant is entitled to the opportunity to file an out-of-time petition for discretionary review of the judgment of the Second Court of Appeals in Cause No. 02-12-00105-CR that affirmed his conviction in Cause No. 1194940D from the 396th District Court of Tarrant 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 Delivered: January 30, 2019 Do not publish
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