             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                          NO. AP-76,537



                 EX PARTE DAVID ALEXANDER BAILEY, Applicant



               ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                CAUSE NO. 7877-A IN THE 27TH DISTRICT COURT
                         FROM LAMPASAS 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 possession with

intent to deliver a controlled substance and sentenced to thirty-five years’ imprisonment. The Third

Court of Appeals affirmed his conviction. Bailey v. State, No. 03-07-417-CR (Tex. App.–Austin,

October 27, 2009).

       Applicant contends that his appellate counsel rendered ineffective assistance because counsel

failed to file a promised extension of time for Applicant to file his petition for discretionary review
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(PDR) pro se. We remanded this application to the trial court for 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 file a promised

extension of time for Applicant to file hi petition for discretionary review pro se and that failure

caused Applicant to miss his deadline to file his PDR. 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 Third Court of Appeals in Cause No. 03-07-417-CR that affirmed his conviction

in Case No. 7877 from the 27th Judicial District Court of Lampasas County. Applicant shall file his

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

Court’s mandate issues.



Delivered: April 20, 2011
Do not publish
