EX PARTE TRAMAINE D. YOUNG (other)

OF TEXAS

NO. AP-76,400

EX PARTE TRAMAINE D. YOUNG, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 2007-417868 IN THE 364TH DISTRICT COURT

FROM LUBBOCK 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 burglary of a habitation and sentenced to fifty-five years imprisonment. The Seventh Court of Appeals affirmed his conviction. Young v. State, No. 07-08-0309-CR (Tex. App. Amarillo Sep. 4, 2009, pet. dism d) (not designated for publication).

Applicant contends that his appellate counsel rendered ineffective assistance because counsel filed an untimely petition for discretionary review. If appellate counsel s action or inaction denies a defendant his opportunity to prepare and file a petition for discretionary review, the defendant has been denied his sixth amendment right to effective assistance of counsel. Ex parte Wilson, 956 S.W.2d 25, 26 (Tex. Crim. App. 1997).

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 file a petition for discretionary review. The trial court recommends that relief be granted. Ex parte Wilson, 956 S.W.2d 25, 26 (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 Seventh Court of Appeals in Cause No. 07-08-0309-CR that affirmed his conviction in Case No. 2007-417868 from the 364th Judicial District Court of Lubbock County. Applicant shall file his petition for discretionary review with the Seventh Court of Appeals within 30 days of the date on which this Court s mandate issues.

Delivered: August 25, 2010

Do not publish