Roberts, Robert Ray

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-31,799-10

EX PARTE ROBERT RAY ROBERTS, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 2021CR5177-W2 IN THE 226TH DISTRICT COURT
FROM BEXAR COUNTY

Per curiam. SLAUGHTER, J., filed a concurring opinion. YEARY, J., dissented.

OPINION

Applicant was convicted of three counts of sexual assault of a child and sentenced to

concurrent terms of nine years’ imprisonment. The Eighth Court of Appeals affirmed his conviction.

Roberts v. State, No. 08-23-00011-CR (Tex. App.–El Paso, August 4, 2023). Applicant filed this

application for a writ of habeas corpus in the county of conviction, and the district clerk forwarded

it to this Court. See TEX. CODE CRIM. PROC. art. 11.07.

Applicant requests an out-of-time petition for discretionary review (PDR). His Article 11.07

application is not verified. However, Applicant made the same request in a previous application that

was properly verified but that was dismissed-direct appeal pending because the mandate had not

issued. In addition, the trial court recommends granting relief on this application. Therefore, this
2

Court will not dismiss the application. See Ex parte Golden, 991 S.W.2d 859 (Tex. Crim. App.

1999).

Appellate counsel did not provide timely notice when Applicant’s conviction was affirmed

on appeal. The appellate opinion was issued on August 4, 2023. Under Texas Rules of Appellate

Procedure Rule 48.4, appellate counsel had five days in which to send Applicant a copy of the

opinion and judgment complying with Texas Rules of Appellate Procedure Rule 68. Appellate

counsel submitted an affidavit in which he acknowledges that the certified mail card was date-

stamped as mailed on August 16, 2023, and date-stamped as picked up by Applicant on August 18,

2023.

Applicant had thirty days after the day the appellate court’s judgment was entered in which

to file a PDR. Tex. R. App. Proc. Rule 68.2(a).1 When Applicant received copies of the appellate

court’s opinion and judgment, he had approximately sixteen days to file a PDR.

Applicant asserts that, as a result of the delay, he did not have time to meaningfully prepare

and file a pro se PDR. The habeas court recommends granting an out-of-time PDR.

We agree. Applicant filed his first writ application requesting an out-of-time PDR on

September 25, 2023. He alleges that he was deprived of the right to file a PDR, and he is currently

asking for an out-of-time PDR. See Ex parte Crow, 180 S.W.3d 135, 138-39 (Tex. Crim. App.

2005). Under the circumstances, Applicant’s allegations are sufficient to prove that he would have

filed a pro se PDR if he had been timely and properly informed that his conviction had been

affirmed. See Ex parte Wilson, 956 S.W.2d 25, 26 (Tex. Crim. App. 1997).

1
Appellate counsel points out that Applicant could have moved for an additional 15 days
under Tex. R. App. Proc. Rule 10.5(b). The record contains no indication that Applicant was
aware of this option or that he would have been capable of complying with the rule.
3

Applicant is granted leave to file an out-of-time petition for discretionary review. Should

Applicant desire to seek discretionary review, he must take affirmative steps to see that his petition

is filed in the Court of Appeals within thirty days after the issuance of the mandate of this Court in

this cause. We dismiss Applicant’s remaining allegations.

Copies of this opinion shall be sent to the Texas Department of Criminal Justice–Correctional

Institutions Division and the Board of Pardons and Paroles.

Delivered: September 11, 2024
Do not publish