Smith, Ex Parte Michael Lynn

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS



NO. AP-75,544

EX PARTE MICHAEL LYNN SMITH, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 645114 IN THE 185TH JUDICIAL 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 life imprisonment. The Fourteenth Court of Appeals affirmed his conviction. Smith v. State, No. 14-96-00862-CR (Tex. App. - Houston [14th Dist] January 15, 1998, no pet.)

Applicant contends that his appellate counsel rendered ineffective assistance because counsel informed Applicant that a petition for discretionary review had been filed in this Court and denied, when in fact no such petition was ever filed in this Court.

Appellate counsel filed an affidavit with the trial court, stating that he has no independent recollection of Applicant or his appeal and that his file on Applicant's case was destroyed in 2004. Based on that affidavit, the trial court has entered findings of fact and conclusions of law recommending either that relief be denied on the basis of laches, or that Applicant be granted the opportunity to file an out-of-time petition for discretionary review.

Applicant alleges that he relied on a letter from appellate counsel informing him that his petition for discretionary review had been filed and denied, until he learned from this Court in 2005 that no such petition was ever filed. 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 Fourteenth Court of Appeals in Cause No. 14-96-00862-CR that affirmed his conviction in Case No. 645114 from the 185th Judicial District Court of Harris County, Texas. Applicant shall file his petition for discretionary review with the Fourteenth Court of Appeals within 30 days of the date on which this Court's mandate issues.



Delivered: November 15, 2006

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