             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                          NO. AP-76,511



                      EX PARTE DANIEL TOLOPKA, II, Applicant



           ON APPLICATION FOR A WRIT OF HABEAS CORPUS
      CAUSE NO. CM-06-522-1 IN THE 278 TH JUDICIAL DISTRICT COURT
                         FROM LEON 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 murder and

sentenced to ninety-nine years’ imprisonment. The Seventh Court of Appeals affirmed his

conviction. Tolopka v. State, No. 07-08-00008-CR (Tex. App. – Amarillo, January 31, 2010).

       Applicant contends that his appellate counsel rendered ineffective assistance because counsel

miscalculated the deadline for filing Applicant’s petition for discretionary review. We remanded this

application to the trial court for findings of fact and conclusions of law.
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        The trial court has entered findings of fact and conclusions of law that any error in calculation

of the deadline for filing Applicant’s petition for discretionary review was an error of law by

appellate counsel. The trial court recommends that relief be granted. 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 Seventh Court of Appeals in Cause No. 07-08-00008-CR that affirmed his

conviction in Case No. CM-06-522-1 from the 278th Judicial District Court of Leon County.

Applicant shall file his petition for discretionary review with the Seventh Court of Appeals within

30 days of the date on which this Court’s mandate issues.



Delivered: March 9, 2011
Do not publish
