             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                          NO. AP-76,605



                      EX PARTE JAMES B. CHISEN III, Applicant



              ON APPLICATION FOR A WRIT OF HABEAS CORPUS
              CAUSE NO. D080582-R IN THE 260TH DISTRICT COURT
                          FROM ORANGE 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 assault

and sentenced to fifty years’ imprisonment. The Ninth Court of Appeals affirmed his conviction.

Chisem v. State, No. 09-09-00184-CR (Tex. App.–Beaumont Oct. 13, 2010) (unpublished).

       Applicant contends that his appellate counsel rendered ineffective assistance because counsel

failed to advise him that a motion for rehearing was overruled, causing deadlines for discretionary

review to run. We remanded this application to the trial court for findings of fact and conclusions
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of law. The trial court found that Appellate counsel timely sent Applicant notice that rehearing had

been denied, but mail logs from the Telford Unit showed that Applicant did not receive the notice.

       The trial court recommends that relief be granted. Ex parte Riley, 193 S.W.3d 900, 902 (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 Ninth Court of Appeals in Cause No.

09-09-00184-CR that affirmed his conviction in Case No. 09-09-00184-CR from the 260th Judicial

District Court of Orange 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: August 24, 2011
Do not publish
