             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                           NO. AP-76,799


                       EX PARTE MELVIN GLEN BENNER, Applicant


                  ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                CAUSE NO. 08-02-01660-CR IN THE 410TH DISTRICT COURT
                            FROM MONTGOMERY 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

child pornography and sentenced to sixteen years’ imprisonment. The Ninth Court of Appeals

affirmed his conviction. Benner v. State, No. 09-08-00458-CR (Tex. App.–Beaumont July 7, 2010,

pet. dism’d).

        Applicant contends that he was denied his right to file a petition for discretionary review

because appellate counsel’s legal assistant calendered the wrong deadline. Appellate counsel’s legal

assistant filed an affidavit with the trial court. Based on that affidavit, the trial court has entered
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findings of fact and conclusions of law and recommended that we grant relief.

       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 Ninth Court of Appeals in case number 09-08-00458-

CR that affirmed his conviction in cause number 08-02-01660-CR from the 410th District Court of

Montgomery 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.

       Copies of this opinion shall be sent to the Texas Department of Criminal Justice-Correctional

Institutions Division and Pardons and Paroles Division.



Delivered: May 16, 2012
Do not publish
