            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                        NO. AP-75,851



                      EX PARTE BILLY RAY FOSTER, Applicant



              ON APPLICATION FOR A WRIT OF HABEAS CORPUS
               CAUSE NO. 21167-A IN THE 42 ND DISTRICT COURT
                          FROM TAYLOR COUNTY



       Per curiam.

                                         OPINION

       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

burglary of a habitation and sentenced to sixty years’ imprisonment. The Eleventh Court of

Appeals affirmed his conviction. Foster v. State, No. 11-04-00252-CR (Tex.

App.–Texarkana, delivered September 29, 2005).

       Applicant contends that he was denied his right to file a petition for discretionary
review. He states that his counsel filed a petition on his behalf within the proper time frame

and before the court of appeals issued its mandate, but the court of appeals did not receive

it. Applicant’s attorney filed an affidavit with the trial court stating that he mailed the

petition for discretionary review to the 11 th Court of Appeals prior to the issuance of a

mandate. Based on that affidavit, the trial court recommends granting relief.

       We find that Applicant is entitled to the opportunity to file an out-of-time petition for

discretionary review of the judgment of the Eleventh Court of Appeals in Cause No. 11-04-

00252-CR that affirmed his conviction in Case No. 21167 from the 42nd Judicial District

Court of Taylor County. Ex parte Wilson, 956 S.W.2d 25 (Tex. Crim. App. 1997).

Applicant shall file his petition for discretionary review with the Eleventh Court of Appeals

within 30 days of the date on which this Court’s mandate issues.




Delivered: February 27, 2008
Do not publish
