             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                           NO. AP-76,419



                       EX PARTE TIMOTHY JOHNSON, Applicant



              ON APPLICATION FOR A WRIT OF HABEAS CORPUS
             CAUSE NO. 114-2867-06 IN THE 114TH 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 capital murder

and sentenced to life imprisonment. The Twelfth Court of Appeals affirmed his conviction. Johnson

v. State, No. 12-08-00077-CR (Tex. App.–Tyler Oct. 30, 2010, no pet.).

        Applicant contends that his appellate counsel rendered ineffective assistance because he

failed to timely notify Applicant that his conviction had been affirmed. After holding a live

evidentiary hearing, the trial court concluded that through no fault of appellate counsel Applicant
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was denied his right to file a pro se petition for discretionary review. The trial court recommended

that we grant Applicant an out-of-time petition for discretionary review. We agree. Ex parte Riley,

193 S.W.3d 900 (Tex. Crim. App. 2006). 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. 12-08-00077-CR that affirmed his conviction in Case No. 114-2867-

06 from the 114th 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.



Delivered: September 22, 2010
Do not publish
