IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. AP-76,075
EX PARTE GREGORY JERMAINE WHEELER, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 114-0863-06-A 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 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 life imprisonment. The Twelfth Court of Appeals affirmed his conviction. Wheeler v. State, No. 12-07-00080-CR, (Tex. App. — Tyler, 2008, 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 advise him of his right to petition for discretionary review pro se.
Appellate counsel filed an affidavit with the trial court. The record shows that appellate counsel failed to timely notify Applicant that his conviction had been affirmed and failed to advise him of his right to petition for discretionary appeal pro se. Ex parte Wilson, 956 S.W.2d 25 (Tex. Crim. App. 1997). The trial court recommends that relief be granted. We find 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. 12-07-00080-CR that affirmed his conviction in Case No. 114-0863-06-A 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: January 28, 2009
Do not publish