             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                          NO. AP-76,659



                       EX PARTE ALBERT FOLEY, JR., Applicant



               ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                CAUSE NO. 16682 IN THE 329TH DISTRICT COURT
                         FROM WHARTON 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 driving while

intoxicated and sentenced to twenty-five years’ imprisonment. The Thirteenth Court of Appeals

affirmed his conviction. Foley v. State, 327 S.W.3d 907 (Tex. App.–Corpus Christi 2010).

       Applicant contends that his appellate counsel rendered ineffective assistance because counsel

failed to timely notify Applicant that his conviction had been affirmed and that he had a right to file

a pro se petition for discretionary review. We remanded this application to the trial court for
                                                                                                        2

findings of fact and conclusions of law.

       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 notify

Applicant of his right to file a pro se petition for discretionary review. 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 Thirteenth Court of Appeals in Cause No. 13-09-00473-CR that affirmed his

conviction in Case No. 16682 from the 329th Judicial District Court of Wharton County. Applicant

shall file his petition for discretionary review with this Court 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: October 12, 2011
Do not publish
