             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                          NO. AP-76,331



                          EX PARTE CARLOS LARA, Applicant



           ON APPLICATION FOR A WRIT OF HABEAS CORPUS
        CAUSE NO. B03-157-1 IN THE 198 TH JUDICIAL DISTRICT COURT
                           FROM KERR 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 sexual assault

of a child and sentenced to thirty-seven years’ imprisonment. The Fourth Court of Appeals affirmed

his conviction. Lara v. State, No. 04-05-00065-CR (Tex. App. – San Antonio, March 22, 2006).

       Applicant contends that his appellate counsel rendered ineffective assistance because counsel

failed to advise him of his right to file petition for discretionary review pro se. We remanded this

application to the trial court for findings of fact and conclusions of law.
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       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 there is not sufficient evidence to determine

whether or not appellate counsel timely informed Applicant of the right to petition for discretionary

review pro se. However, based on the affidavit and the information provided by Applicant in

support of his claim, we believe that although appellate counsel did advise Applicant that his

conviction had been affirmed on direct appeal, he did not timely inform Applicant of his right to file

a pro se petition for discretionary review. 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 Fourth Court of Appeals in Cause No. 04-05-00065-CR

that affirmed his conviction in Cause No. B03-157-1 from the 198th Judicial District Court of Kerr

County. Applicant shall file his petition for discretionary review with the Fourth Court of Appeals

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



Delivered: April 28, 2010
Do not publish
