             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                          NO. AP-76,145



               EX PARTE RICHARD MORALES CASTILLO, Applicant



         ON APPLICATION FOR A WRIT OF HABEAS CORPUS
   CAUSE NO. 990D01228-205-1 IN THE 205 TH JUDICIAL DISTRICT COURT
                       FROM EL PASO 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 capital murder

and sentenced to life imprisonment. The Eighth Court of Appeals affirmed his conviction. Castillo

v. State, No. 08-01-00147-CR (Tex. App. - El Paso, September 15, 2004).

       Applicant contends that his appellate counsel rendered ineffective assistance because counsel

advised him that he would file a petition for discretionary review on his behalf, but failed to timely

do so, and failed to advise him of his right to file a petition for discretionary review pro se.
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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 appellate counsel failed to timely file a

petition for discretionary review on Applicant’s behalf after advising Applicant that he would do so.

The trial court recommends that relief be granted. 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 Eighth Court of Appeals in Cause No. 08-01-00147-

CR that affirmed his conviction in Cause No. 990D01228-205-1 from the 205th Judicial District

Court of El Paso County. Applicant shall file his petition for discretionary review with the Eighth

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



Delivered: April 29, 2009
Do not publish
