             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                         NO. WR-80,097-01


                    EX PARTE BENNY LEE MONTGOMERY, Applicant


                  ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                  CAUSE NO. CR34858 IN THE 238TH DISTRICT COURT
                             FROM MIDLAND 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 possession of

cocaine and sentenced to twenty years’ imprisonment. The Eleventh Court of Appeals affirmed his

conviction. Montgomery v. State, No. 11-09-00253-CR (Tex. App.—Eastland Nov. 18, 2010)

(unpublished).

        Applicant contends that his appellate counsel rendered ineffective assistance because counsel

advised him that he would file a petition for discretionary review on Applicant’s behalf, but later

made a strategic decision not to file, forfeiting Applicant’s right to petition pro se for discretionary
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review without consulting with him. We remanded this application to the trial court for additional

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 fully inform

Applicant of his strategy, forfeiting Applicant’s right to discretionary review without consulting him.

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 Eleventh Court of Appeals in Cause No. 11-09-

00253-CR that affirmed his conviction in Cause No. CR34858 from the 238th District Court of

Midland 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.



Delivered: March 19, 2014
Do not publish
