EX PARTE JAMES B. CHISEN III (other)

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. AP-76,605

EX PARTE JAMES B. CHISEN III, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. D080582-R IN THE 260TH DISTRICT COURT

FROM ORANGE 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 assault and sentenced to fifty years' imprisonment. The Ninth Court of Appeals affirmed his conviction. Chisem v. State, No. 09-09-00184-CR (Tex. App.-Beaumont Oct. 13, 2010) (unpublished).

Applicant contends that his appellate counsel rendered ineffective assistance because counsel failed to advise him that a motion for rehearing was overruled, causing deadlines for discretionary review to run. We remanded this application to the trial court for findings of fact and conclusions of law. The trial court found that Appellate counsel timely sent Applicant notice that rehearing had been denied, but mail logs from the Telford Unit showed that Applicant did not receive the notice.

The trial court recommends that relief be granted. Ex parte Riley, 193 S.W.3d 900, 902 (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 Ninth Court of Appeals in Cause No. 09-09-00184-CR that affirmed his conviction in Case No. 09-09-00184-CR from the 260th Judicial District Court of Orange County. Applicant shall file his petition for discretionary review with this Court within 30 days of the date on which this Court's mandate issues.

Delivered: August 24, 2011

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