IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. AP-76,066
EX PARTE JUAN JOSE DELEON, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 28518-361 IN THE 361ST DISTRICT COURT
FROM BRAZOS 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 a 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 forty years’ imprisonment. The First Court of Appeals affirmed his conviction. Deleon v. State, No. 01-01-01237-CR (Tex. App.–Houston [1st Dist.], Sept. 25, 2003, pet. dism’d).
Applicant contends that his appellate counsel failed to file a timely petition for discretionary review and that, as a result, Applicant was denied an opportunity to file a pro se petition for discretionary review. We remanded this application to the trial court for findings of fact and conclusions of law. 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 file a timely petition for discretionary review. The trial court recommended that relief be granted. 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 First Court of Appeals in Cause No. 01-01-01237-CR that affirmed his conviction in Case No. 28518-361 from the 361st Judicial District Court of Brazos County. Applicant shall file his petition for discretionary review with the First Court of Appeals within 30 days of the date on which this Court’s mandate issues.
Delivered: January 14, 2009
Do not publish