











IN THE COURT OF CRIMINAL APPEALS
OF TEXAS



NO. AP-76,205




EX PARTE DAVID LEE SWAIM JR., Applicant




ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. F2005-1851-E IN THE 367TH DISTRICT COURT
FROM DENTON 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 murder and
sentenced to life imprisonment.  The Second Court of Appeals affirmed his conviction. Swaim v.
State, No. 02-07-165-CR (Tex. App.–Ft. Worth, delivered March 13, 2008).  
            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 could file a pro
se petition for discretionary review. 
            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 that his conviction had been affirmed.  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 Second Court of Appeals in Cause No. 02-07-165-CR that affirmed his conviction in Case No.
F2005-1851-E from the 267th Judicial District Court of Denton County.  Applicant shall file his
petition for discretionary review with the Second 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: August 26, 2009
Do not publish
