









IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. AP-75,741


EX PARTE CHARLES MICHAEL WHITMIRE, Applicant





ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 925165-A IN THE 228TH 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 capital murder
and sentenced to life imprisonment.  The Fourteenth Court of Appeals affirmed his conviction on
direct appeal, with an opinion issuing on November 17, 2005.  Applicant's appellate counsel informed
Applicant that his conviction had been affirmed, and timely filed a petition for discretionary review
on December 19, 2005.  
	On January 10, 2006, the Fourteenth Court of Appeals withdrew its original opinion in this
cause, and issued a new opinion, also affirming the conviction.  Whitmire v. State, No. 14-04-00825-CR (Tex. App. - Houston [14th Dist.], January 10, 2006).  No petition for discretionary review was
filed after the court of appeals issued its second opinion.
	Applicant contends that he was denied the opportunity to petition this Court for discretionary
review.  Appellate counsel filed an affidavit with this writ, stating that he never received notice that
the court of appeals had withdrawn its original opinion and issued a new opinion.  Appellate counsel
asserts that had he been aware of these facts, he would have timely re-filed Applicant's petition for
discretionary review after the second opinion issued.  In addition, appellate counsel states in his
affidavit that Applicant at all times wanted to file a petition for discretionary review in this Court.
	Based on appellate counsel's affidavit, the trial court has entered findings of fact, finding that
appellate counsel did not receive notice that the court of appeals had withdrawn its original opinion
and issued a new opinion.  The trial court also finds that appellate counsel did not file another petition
for review on Applicant's behalf, and did not advise Applicant of the second appellate opinion, and
of his right to file a pro se petition for discretionary review.  
	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. 14-04-00825-CR that affirmed his conviction in Case No. 925165-A from the 228th Judicial District Court
of Harris County.  See Ex parte Riley, 193 S.W.3d 900 (Tex. App. 2006).  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: August 22, 2007
Do not publish
