EX PARTE ISMAEL AVALOS (other)

OF TEXAS

NO. AP-76,341

EX PARTE ISMAEL AVALOS, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 1059142 IN THE 337TH 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 pleaded guilty to possession with intent to deliver a controlled substance, and was sentenced to thirty-three years imprisonment. The Fourteenth Court of Appeals affirmed his conviction. Avalos v. State, No. 14-06-00969-CR (Tex. App. Houston [14th Dist.], May 15, 2008).

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 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 notify Applicant that his conviction had been affirmed and failed to advise him of his right to petition for discretionary review pro se. The trial court recommends that relief be granted. 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 Fourteenth Court of Appeals in Cause No. 14-06-00969-CR that affirmed his conviction in Case No. 1059142 from the 337th Judicial District Court of Harris County. 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. Applicant's remaining claim is dismissed. See Ex parte Torres, 943 S.W.2d 469 (Tex. Crim. App. 1997).

Delivered: May 5, 2010

Do not publish