









IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. AP-75,544


EX PARTE MICHAEL LYNN SMITH, Applicant





ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 645114 IN THE 185TH JUDICIAL DISTRICT COURT

FROM HARRIS 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 murder and
sentenced to life imprisonment.  The Fourteenth Court of Appeals affirmed his conviction. Smith
v. State, No. 14-96-00862-CR (Tex. App. - Houston [14th Dist] January 15, 1998, no pet.)  
	Applicant contends that his appellate counsel rendered ineffective assistance because counsel
informed Applicant that a petition for discretionary review had been filed in this Court and denied,
when in fact no such petition was ever filed in this Court. 
	Appellate counsel filed an affidavit with the trial court, stating that he has no independent
recollection of Applicant or his appeal and that his file on Applicant's case was destroyed in 2004. 
Based on that affidavit, the trial court has entered findings of fact and conclusions of law
recommending either that relief be denied on the basis of laches, or that Applicant be granted the
opportunity to file an out-of-time petition for discretionary review.  
	Applicant alleges that he relied on a letter from appellate counsel informing him that his
petition for discretionary review had been filed and denied,  until he learned from this Court in 2005
that no such petition was ever filed.  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 Fourteenth Court of
Appeals in Cause No. 14-96-00862-CR that affirmed his conviction in Case No. 645114 from the
185th Judicial District Court of Harris County, Texas.  Applicant shall file his petition for
discretionary review with the Fourteenth Court of Appeals within 30 days of the date on which this
Court's mandate issues.

Delivered: November 15, 2006
Do not publish
 
