











IN THE COURT OF CRIMINAL APPEALS
OF TEXAS



NO. AP-76,230




EX PARTE JOHNATHAN TOLIVER, Applicant




ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 241-1849-06 IN THE 241ST DISTRICT COURT
FROM SMITH COUNTY




           Per curiam.

O P I N I O N

            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 delivery of a
controlled substance and sentenced to life imprisonment. The Twelfth Court of Appeals affirmed his
conviction. Toliver v. State, No. 12-06-00388-CR (Tex. App.–Tyler, March 19, 2008, no pet.). 
            Applicant contends that his appellate counsel rendered ineffective assistance because counsel
failed to advise him of his right to petition for discretionary review pro se. We remanded this
application 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 findings of fact and conclusions of law that appellate counsel failed to advise Applicant
of his right to petition for discretionary review pro se. The trial court recommends that relief be
granted. Ex parte Wilson, 956 S.W.2d 25 (Tex. Crim. App. 1997). 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 Twelfth Court of Appeals in Cause No. 12-06-00388-CR that affirmed his conviction in Case
No. 241-1849-06 from the 241st 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. 
            Applicant’s remaining claims are dismissed. Ex parte Torres, 943 S.W.2d 469 (Tex. Crim.
App. 1997).
 
Delivered: September 23, 2009
Do not publish
