             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                           NO. AP-76,230



                     EX PARTE JOHNATHAN TOLIVER, Applicant



               ON APPLICATION FOR A WRIT OF HABEAS CORPUS
              CAUSE NO. 241-1849-06 IN THE 241ST DISTRICT COURT
                            FROM SMITH 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 a writ of habeas corpus. Ex parte

Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of delivery of a

controlled substance and sentenced to life imprisonment. The Twelfth Court of Appeals affirmed his

conviction. Toliver v. State, No. 12-06-00388-CR (Tex. App.–Tyler, March 19, 2008, no pet.).

        Applicant contends that his appellate counsel rendered ineffective assistance because counsel

failed to advise him of his right to 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 appellate counsel failed to advise Applicant

of his right to petition for discretionary review pro se. 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 Twelfth Court of Appeals in Cause No. 12-06-00388-CR that affirmed his conviction in Case

No. 241-1849-06 from the 241st Judicial District Court of Smith County. Applicant shall file his

petition for discretionary review with the Twelfth Court of Appeals within 30 days of the date on

which this Court’s mandate issues.

       Applicant’s remaining claims are dismissed. Ex parte Torres, 943 S.W.2d 469 (Tex. Crim.

App. 1997).



Delivered: September 23, 2009
Do not publish
