EX PARTE TIMOTHY JOHNSON (other)

OF TEXAS

NO. AP-76,419

EX PARTE TIMOTHY JOHNSON, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 114-2867-06 IN THE 114TH DISTRICT COURT

FROM SMITH 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 a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of capital murder and sentenced to life imprisonment. The Twelfth Court of Appeals affirmed his conviction. Johnson v. State, No. 12-08-00077-CR (Tex. App. Tyler Oct. 30, 2010, no pet.).

Applicant contends that his appellate counsel rendered ineffective assistance because he failed to timely notify Applicant that his conviction had been affirmed. After holding a live evidentiary hearing, the trial court concluded that through no fault of appellate counsel Applicant was denied his right to file a pro se petition for discretionary review. The trial court recommended that we grant Applicant an out-of-time petition for discretionary review. We agree. Ex parte Riley, 193 S.W.3d 900 (Tex. Crim. App. 2006). 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 Twelfth Court of Appeals in Cause No. 12-08-00077-CR that affirmed his conviction in Case No. 114-2867-06 from the 114th Judicial District Court of Smith County. Applicant shall file his petition for discretionary review with the Twelfth Court of Appeals within 30 days of the date on which this Court s mandate issues.

Delivered: September 22, 2010

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