             IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                NOS. AP-75,866 & AP-75,867



                      EX PARTE BRIAN LYNN SMITH, Applicant



         ON APPLICATIONS FOR WRITS OF HABEAS CORPUS
  CAUSE NOS. 09839-A & 09840-A IN THE 29 TH JUDICIAL DISTRICT COURT
                     FROM PALO PINTO 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 these applications for writs of habeas corpus. Ex

parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of murder and

attempted murder and sentenced to life imprisonment in each case. The Eleventh Court of Appeals

affirmed his convictions. Smith v. Texas, Nos. 11-94-00017-CR & 11-94-00018-CR (Tex. App. –

Eastland, February 2, 1995, no pet.)

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

because counsel failed to advise him of his right to petition this Court for discretionary review pro
se. We remanded these applications to the trial court for findings of fact and conclusions of law.

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

has entered an order finding no controverted, previously unresolved facts material to the legality of

Applicant’s confinement. However, the record after remand indicates that although appellate

counsel timely informed Applicant that the court of appeals had affirmed his convictions, he did not

inform Applicant specifically that he could file a pro se 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 out-of-time petitions for discretionary review of the judgment of the Eleventh

Court of Appeals in Cause Nos. 11-94-00017-CR and 11-94-00018-CR that affirmed his convictions

in Cause Nos. 09839-A and 09840-A from the 29th Judicial District Court of Palo Pinto County.

Applicant shall file his petition(s) for discretionary review with the Eleventh Court of Appeals within

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



Delivered: March 12, 2008
Do not publish
