             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                           NO. AP-76,957


                    EX PARTE ALBERT VINCENT THOMAS, Applicant


                  ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                  CAUSE NO. 1145134-A IN THE 263rd 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 a 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 thirty years’ imprisonment. The Fourteenth Court of Appeals

affirmed his conviction. Thomas v. State, No. 14-08-01157-CR (Tex. App.–Houston [14th Dist.],

delivered February 18, 2010, no pet.).

        Applicant contends, inter alia, that his appellate counsel rendered ineffective assistance

because counsel failed to advise him of his right to file a pro se petition for discretionary review.

        Appellate counsel filed an affidavit, along with attached exhibits, with the trial court. Based
                                                                                                       2

on that affidavit and exhibits, the trial court has entered findings of fact and conclusions of law that

appellate counsel properly advised Applicant of his right to file a pro se petition for discretionary

review. However, this finding of fact and conclusion of law is not supported by the record in this

case. Counsel’s affidavit and exhibits reflect that she timely notified Applicant of the appellate

court’s decision in this case, promised him that she would file a petition for discretionary review on

his behalf, changed her mind about filing the petition, and then informed the Applicant that she

would not be filing a petition on his behalf approximately four months after mandate issued.1 The

record before this Court reflects that Applicant was not timely advised of his right to pursue a

petition for discretionary review on his own and he is entitled to relief. 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 Fourteenth Court of Appeals in Cause No. 14-08-

01157-CR that affirmed his conviction in Cause No. 14-08-01157-CR from the 263rd District Court

of Harris 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.

        Applicant’s remaining claims are dismissed. Ex parte Torres 943 S.W.2d 469 (Tex. Crim.

App. 1997).



Delivered: January 30, 2013
Do not publish


        1
          Counsel is correct that Applicant had no right to counsel on a petition for discretionary
review and that she had a duty to not file a frivolous petition. However, the error here is that
Applicant was deprived of his right to file a pro se petition due to counsel’s reneged promise and
her failure to timely inform Applicant of his right to pursue discretionary review on his own.
