             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                           NO. AP-76,364



                 EX PARTE DAVID LAMAR TARBUTTON, Applicant



              ON APPLICATION FOR A WRIT OF HABEAS CORPUS
             CAUSE NO. CR-1864-95-B IN THE 93RD DISTRICT COURT
                         FROM HIDALGO 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 one count of

possession of child pornography and sentenced to ten years’ imprisonment. He was also convicted

of two counts of indecency with a child and one count of aggravated sexual assault and sentenced

to imprisonment for ten, fifteen, and thirty years, respectively. The Thirteenth Court of Appeals

affirmed his convictions. Tarbutton v. State, No. 13-98-00101-CR (Tex. App.–Corpus Christi 1999,

no pet.).
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        Applicant contends, among other things, that he was denied his right to a unanimous jury

verdict with respect to the aggravated sexual assault count and that appellate counsel failed to advise

him of his right to file a petition for discretionary review pro se. The trial court made findings of fact

and conclusions of law and recommended that we set aside the aggravated sexual assault count and

grant Applicant an out-of-time petition for discretionary review with respect to the remaining counts.

        We conclude that Applicant is entitled to the opportunity to file an out-of-time petition for

discretionary review of the judgment of the Thirteenth Court of Appeals in Cause No. 13-98-00101-

CR that affirmed his convictions in Case No. CR-1864-95-B from the 93rd Judicial District Court

of Hidalgo County. Ex parte Wilson, 956 S.W.2d 25 (Tex. Crim. App. 1997). Applicant shall file

his petition for discretionary review with the Thirteenth Court of Appeals within 30 days of the date

on which this Court’s mandate issues.

        We decline to review the merits of Applicant’s jury unanimity claim. This claim and his other

claims are dismissed. Ex parte Torres, 943 S.W.2d 469 (Tex. Crim. App. 1997). Applicant may raise

these claims in a second habeas application after he exhausts his right to file a petition for

discretionary review.



Delivered: June 16, 2010
Do not publish
