             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                          NO. AP-76,075



                EX PARTE GREGORY JERMAINE WHEELER, Applicant



             ON APPLICATION FOR A WRIT OF HABEAS CORPUS
           CAUSE NO. 114-0863-06-A IN THE 114TH DISTRICT COURT
                           FROM SMITH 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 life imprisonment. The Twelfth Court of Appeals affirmed his conviction.

Wheeler v. State, No. 12-07-00080-CR, (Tex. App. — Tyler, 2008, no pet.) (not designated for

publication).

       Applicant contends that his appellate counsel rendered ineffective assistance because counsel

failed to timely notify Applicant that his conviction had been affirmed and failed to advise him of
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his right to petition for discretionary review pro se.

       Appellate counsel filed an affidavit with the trial court. The record shows that appellate

counsel failed to timely notify Applicant that his conviction had been affirmed and failed to advise

him of his right to petition for discretionary appeal pro se. Ex parte Wilson, 956 S.W.2d 25 (Tex.

Crim. App. 1997). The trial court recommends that relief be granted. We find that Applicant is

entitled to the opportunity to file an out-of-time petition for discretionary review of the judgment of

the Twelfth Court of Appeals in Cause No. 12-07-00080-CR that affirmed his conviction in Case

No. 114-0863-06-A from the 114th Judicial District Court of Smith County. Applicant shall file his

petition for discretionary review with the Twelfth Court of Appeals within 30 days of the date on

which this Court’s mandate issues.



Delivered: January 28, 2009
Do not publish
