             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                           NO. AP-76,368



        EX PARTE DAVID T. MCGARY, AKA DAVID SANDERS, Applicant



               ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                 CAUSE NO. 4006 IN THE 46TH DISTRICT COURT
                        FROM HARDEMAN 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 a

controlled substance and sentenced to ninety-nine years’ imprisonment. The Seventh Court of

Appeals affirmed his conviction. McGary v. State, No. 07-07-00503-CR (Tex. App.–Amarillo 2008,

no pet.).

        Applicant contends that his appellate counsel rendered ineffective assistance because counsel

failed to advise Applicant of his right to file a pro se petition for discretionary review. On August
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19, 2009, we remanded this application and directed the trial court to make findings of fact and

conclusions of law and to order appellate counsel to respond to Applicant’s claim. On February 3,

2010, we remanded this application again and directed the trial court to make further findings and

conclusions as to whether appellate counsel timely notified Applicant that his conviction had been

affirmed. We also directed the trial court to order appellate counsel to file a second response and

explain whether he timely advised Applicant that his conviction had been affirmed.

       On the second remand, appellate counsel did not file a response. 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 Seventh Court of Appeals in Cause No. 07-07-00503-CR that affirmed his

conviction in Case No. 4006 from the 46th Judicial District Court of Hardeman 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: June 30, 2010
Do not publish
