             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                            NO. AP-76,934


                            EX PARTE ROLAND LEYBA, Applicant


                  ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                  CAUSE NO. 2009-26-C2 IN THE 54TH DISTRICT COURT
                            FROM MCLENNAN 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

robbery and sentenced to forty-five years’ imprisonment. The Tenth Court of Appeals affirmed his

conviction. Leyba v. State, No. 10-09-00337-CR (Tex. App.—Waco Oct. 12, 2011) (unpublished).

        Applicant contends that his appellate counsel rendered ineffective assistance because counsel

did not timely file a petition for discretionary review.

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

has entered findings of fact and conclusions of law that appellate counsel failed to timely file a
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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. 10-09-00337-

CR that affirmed his conviction in Cause No. 2009-26-C2 from the 54th District Court of McLennan

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.



Delivered: December 19, 2012
Do not publish
