                                                                         FILED IN COURT OF APPEALS
                                                                           12}h Ccurt o? Appeals District




                                                                                   fLfcr ! txAS^
                                                                              CATHY S.LUSKJ CLERK


              IN THE COURT OF CRIMINAL APPEALS
                          OF TEXAS

                                         NO. WR-61,456-03



                EX PARTE RAFAEL ANDREAS CAHVARRIAGA, Applicant



                  ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                   CAUSE NO. B-10,436 IN THE 173rd DISTRICT COURT
                                 FROM HENDERSON COUNTY




        Per curiam.


                                            OPINION


        Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the

clerk ofthe trial court transmitted to this Court this application for a writ ofhabeas corpus. Exparte

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

sentenced to fifty-five years' imprisonment. The Twelfth Court ofAppeals affirmed his conviction.

Cahvarriga v. State, No. 12-03-00165-CR (Tex. App.-Tyler December 30, 2004).

        Applicant contends that his appellate counsel rendered ineffective assistance because counsel

failed to timely notify Applicant that his conviction had been affirmed.          We remanded this

application to the trial court for findings of fact and conclusions of law.

       The trial court held a live hearing where appellate counsel testified that he sent a letter to
                                                                                                     2


Applicant explaining his right to file a pro se petition for discretionary review. He testified that he

had proof of mailing the letter, but had no proof that Applicant received the letter. Applicant

testified at the hearing that he never received the letter from counsel. The trial court found both

witnesses to be credible. Applicant was subjected to a breakdown in the system that entitledhim to

relief. Exparte Riley, 193 S.W.3d 900 (Tex. Crim. App. 2003).

       We find, therefore, that Applicant is entitledto the opportunity to file an out-of-time petition

for discretionary reviewofthejudgmentofthe TwelfthCourtofAppeals in CauseNo. 12-03-00165-

CR that affirmed his conviction in Cause No. B-10,436 from the 173rd District Court of Henderson

County. Applicant shall file his petitionfor discretionary review with this Courtwithin 30 days of

the date on which this Court's mandate issues.


       Applicant's remaining claims are dismissed. ExParte Torres, 943 S.W.2d 469 (Tex. Crim.

App. 1997).

Delivered: May 8, 2013
Do not publish
