









IN THE COURT OF CRIMINAL APPEALS
OF TEXAS





NO. AP-76,799


EX PARTE MELVIN GLEN BENNER, Applicant





ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 08-02-01660-CR IN THE 410TH DISTRICT COURT

FROM MONTGOMERY 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 possession of
child pornography and sentenced to sixteen years' imprisonment.  The Ninth Court of Appeals
affirmed his conviction.  Benner v. State, No. 09-08-00458-CR (Tex. App.-Beaumont July 7, 2010,
pet. dism'd).  
	Applicant contends that he was denied his right to file a petition for discretionary review
because appellate counsel's legal assistant calendered the wrong deadline. Appellate counsel's legal
assistant filed an affidavit with the trial court.  Based on that affidavit, the trial court has entered
findings of fact and conclusions of law and recommended that we grant relief.   
	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 Ninth Court of Appeals in case number 09-08-00458-CR that affirmed his conviction in cause number 08-02-01660-CR from the 410th District Court of
Montgomery County.  Applicant shall file his petition for discretionary review with this Court within
30 days of the date on which this Court's mandate issues.
 Copies of this opinion shall be sent to the Texas Department of Criminal Justice-Correctional
Institutions Division and Pardons and Paroles Division.

Delivered: May 16, 2012
Do not publish
