EX PARTE LEE EDWARD CARTER (original)

IN THE COURT OF CRIMINAL APPEALS 
OF TEXAS 

NO. AP-76,495
EX PARTE LEE EDWARD CARTER, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 07-56570-Q IN THE 204TH DISTRICT COURT 
FROM DALLAS 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 unlawful possession of a firearm by a felon and after a second punishment hearing, was sentenced to twenty-five years' imprisonment. The Fifth Court of Appeals affirmed his conviction, but overturned his sentence, and ordered a new punishment hearing. Carter v. State, No. 05-08-00432-CR (Tex. App.-Dallas, July 28, 2009).

Applicant contends that his appellate counsel rendered ineffective assistance because counsel failed to timely notify Applicant that he had a right to file a pro se petition for discretionary review to challenge the appellate court's affirmance of his conviction.

Appellate counsel filed a response with the trial court. Based on that response, the trial court has entered findings of fact and conclusions of law that appellate counsel failed to timely notify Applicant that he had a right to file a pro se petition for discretionary review. The trial court recommends that relief be granted. Ex parte Wilson, 956 S.W.2d 25 (Tex. Crim. App. 1997). We agree.

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 Fifth Court of Appeals in Cause No. 05-08-00432-CR that affirmed his conviction in Case No. 07-56570-Q from the 204th Judicial District Court of Dallas County. Applicant shall file his petition for discretionary review with the Fifth Court of Appeals within 30 days of the date on which this Court's mandate issues.

Delivered: February 9, 2011

Do not publish