EX PARTE TONY WAYDE CARROLL (other)

OF TEXAS

NO. AP-76,212

EX PARTE TONY WAYDE CARROLL, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. F-2006-2089-E IN THE 367TH DISTRICT COURT

FROM DENTON 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 three counts of indecency with a child. The jury sentenced him to twenty years imprisonment for two counts and ten years imprisonment for one count. The sentences for all three counts were ordered to run consecutively. The Second Court of Appeals affirmed his conviction. Carroll v. State, No. 02-08-216-CR, 2009 Tex. App. LEXIS 2075 (Tex. App. Fort Worth Mar. 19, 2009, no pet.) (not designated for publication).

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 timely 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 appellate counsel failed to timely notify Applicant that his conviction had been affirmed and failed to timely advise him of his right to petition for discretionary review pro se. 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 Second Court of Appeals in Cause No. 02-08-00216-CR that affirmed his conviction in Case No. F-2006-2089-E from the 367th Judicial District Court of Denton County. Applicant shall file his petition for discretionary review with the Second Court of Appeals within 30 days of the date on which this Court s mandate issues.

Delivered: September 16, 2009

Do not publish