             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                          NO. AP-76,028



                           EX PARTE JOEL COOPER, Applicant



               ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                CAUSE NO. 909324 IN THE 209TH DISTRICT COURT
                           FROM HARRIS 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 aggravated sexual

assault of a child and sentenced to life imprisonment. The First Court of Appeals affirmed his

conviction. Cooper v. State, No. 01-03-01092-CR (Tex. App. – Houston October 14, 2004, no pet.).

       Applicant contends that his appellate counsel rendered ineffective assistance because

Applicant wanted to file a petition for discretionary review and relied on appellate counsel’s

representation that she would file a petition for discretionary review on his behalf, but counsel did
not file a petition for discretionary review or notify Applicant that she would not be filing a petition

for discretionary review until after the filing deadline.

        Appellate counsel filed an affidavit with the trial court. Based on that affidavit, the trial court

has entered findings of fact that appellate counsel notified Applicant that she would continue to

pursue his appeal until she heard otherwise from Applicant, but after the filing deadline counsel

informed Applicant that the petition for discretionary review was past due and that she would not

be filing a petition on Applicant’s behalf. Thus, Applicant was denied the opportunity to file a

petition for discretionary review. 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 First Court of Appeals in Cause No. 01-03-01092-CR

that affirmed his conviction in Case No. 909324 from the 209th District Court of Harris County,

Texas. Applicant shall file his petition for discretionary review with the First Court of Appeals

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




Filed: November 5, 2008
Do not publish
