             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                             AP-76,080

                     EX PARTE MICHAEL LEE SMITH, Applicant



               ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                        CAUSE NO. 8325-1 IN THE 82ND
                   DISTRICT COURT FROM FALLS 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 manslaughter and

sentenced to twenty years’ imprisonment. The Tenth Court of Appeals affirmed his conviction.

Smith v. State, No. 10-97-051-CR (Tex. App. - Waco, delivered February 27, 2008, no pet.).

       Applicant contends that his appellate counsel rendered ineffective assistance because counsel

failed to timely file a petition for discretionary review. Counsel submitted an affidavit stating that

he failed to timely file the petition for discretionary review because his staff failed to calendar the
                                                                                               SMITH - 2

date it was due. The trial court found that counsel inadvertently failed to file the petition, and

recommends that applicant be given an opportunity to file an out-of-time petition for discretionary

review.

          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 Tenth Court of Appeals in Cause No. 10-07-051-CR

that affirmed his conviction in Case No. 8325 from the 82nd Judicial District Court of Falls County.

Applicant shall file his petition for discretionary review with the Tenth Court of Appeals within 30

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



Filed: January 28, 2009
Do not publish
