EX PARTE JASON LEVAR GIBSON (other)

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. AP-76,539

EX PARTE JASON LEVAR GIBSON, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 3032574-A IN THE 299TH JUDICIAL DISTRICT COURT

FROM TRAVIS 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 aggravated robbery and sentenced to forty-two years' imprisonment. The Third Court of Appeals affirmed his conviction. Gibson v. State, No. 03-04-00618-CR (Tex. App. - Austin, May 18, 2006).

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 if appellate counsel sent Applicant notice that his conviction had been affirmed and of his right to petition for discretionary review pro se, Applicant never received such notice. 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 Third Court of Appeals in Cause No. 03-04-00618-CR that affirmed his conviction in Cause No. 3032574 from the 299th Judicial District Court of Travis County. Applicant shall file his petition for discretionary review with the Third Court of Appeals within 30 days of the date on which this Court's mandate issues.

Delivered: April 20, 2011

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