             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                          NO. AP-76,144



                      EX PARTE RAY RECIO CORTEZ, Applicant



          ON APPLICATION FOR A WRIT OF HABEAS CORPUS
      CAUSE NO. B-04-0897-S IN THE 119 TH JUDICIAL DISTRICT COURT
                      FROM TOM GREEN 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 entered an open plea of guilty to

aggravated kidnapping, and was sentenced to eighty years’ imprisonment. The Third Court of

Appeals affirmed his conviction. Cortez v. State, No. 03-05-00256-CR (Tex. App. – Austin, May

30, 2007).

       Applicant contends, inter alia, that he was denied the opportunity to petition this Court for

discretionary review, because he did not receive timely notice that his conviction had been affirmed
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and that he had a right to petition for discretionary review pro se. Appellate counsel filed an

affidavit with the trial court. Based on that affidavit, the trial court entered findings of fact and

conclusions of law that appellate counsel sent timely notice to Applicant that his conviction had been

affirmed, and advised him of his right to petition for discretionary appeal pro se. Because there was

some evidence in the record to support Applicant’s claim that he did not timely receive this notice,

we remanded this application to the trial court for findings of fact and conclusions of law.

        The trial court obtained an affidavit from TDCJ, which indicates that Applicant did not

receive any mail from his attorney during the applicable period for filing his petition for discretionary

review. Because it is possible that Applicant was deprived of his opportunity to petition for

discretionary review due to a breakdown in the system, the trial court recommends that relief be

granted. Ex parte Riley, 193 S.W.3d 900 (Tex. Crim. App. 2006). 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. 03-05-00256-CR that affirmed his conviction in Cause

No. B-04-0897-S from the 119th Judicial District Court of Tom Green County. Applicant shall file

his petition for discretionary review with the Third Court of Appeals within 30 days of the date on

which this Court’s mandate issues.

        Applicant's remaining claims are dismissed. See Ex parte Torres, 943 S.W.2d 469 (Tex.

Crim. App. 1997).




Delivered: April 29, 2009
Do not publish
