IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. AP-76,718
EX PARTE PAUL RAY DESILETS, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 08-12-11262-CR IN THE 359th DISTRICT COURT
FROM MONTGOMERY 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 writ of habeas corpus. Ex parte
Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of two counts of
intoxication assault and sentenced to five years’ and six years’ imprisonment, respectively. The
Ninth Court of Appeals affirmed his conviction. Desilets v. State, No. 09-09-00375-CR (Tex.
App.–Beaumont, delivered October 6, 2010).
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
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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 advise him
of his right to petition for discretionary review pro se. The trial court recommends that relief be
granted because of a “breakdown in the system” and that any error was without fault to counsel.
However, counsel states in his affidavit that he “neglected to inform Mr. Desilets after [the appeal]
was affirmed that he had thirty days to file a petition for discretionary review.” The record reflects
that Applicant is entitled to relief, but not due to any breakdown in the system. 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 judgment of the Ninth Court of Appeals
in Cause No. 09-09-00375-CR that affirmed his conviction in Case No. 08-12-11262-CR from the
359th Judicial District Court of Montgomery 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: February 1, 2012
Do not publish
Desilets, Ex Parte Paul Ray
Combined Opinion