No. AP-75,741
Delivered: August 22, 2007. DO NOT PUBLISH.
On Application for a Writ of Habeas Corpus Cause No. 925165-a in the 228th Judicial District Court from Harris 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 capital murder and sentenced to life imprisonment. The Fourteenth Court of Appeals affirmed his conviction on direct appeal, with an opinion issuing on November 17, 2005. Applicant's appellate counsel informed Applicant that his conviction had been affirmed, and timely filed a petition for discretionary review on December 19, 2005. On January 10, 2006, the Fourteenth Court of Appeals withdrew its original opinion in this cause, and issued a new opinion, also affirming the conviction. Whitmire v. State, No. 14-04-00825-CR (Tex.App. — Houston [14th Dist.], January 10, 2006). No petition for discretionary review was filed after the court of appeals issued its second opinion. Applicant contends that he was denied the opportunity to petition this Court for discretionary review. Appellate counsel filed an affidavit with this writ, stating that he never received notice that the court of appeals had withdrawn its original opinion and issued a new opinion. Appellate counsel asserts that had he been aware of these facts, he would have timely re-filed Applicant's petition for discretionary review after the second opinion issued. In addition, appellate counsel states in his affidavit that Applicant at all times wanted to file a petition for discretionary review in this Court. Based on appellate counsel's affidavit, the trial court has entered findings of fact, finding that appellate counsel did not receive notice that the court of appeals had withdrawn its original opinion and issued a new opinion. The trial court also finds that appellate counsel did not file another petition for review on Applicant's behalf, and did not advise Applicant of the second appellate opinion, and of his right to file a pro se petition for discretionary review. 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 Fourteenth Court of Appeals in Cause No. 14-04-00825-CR that affirmed his conviction in Case No. 925165-A from the 228th Judicial District Court of Harris County. See Ex parte Riley, 193 S.W.3d 900 (Tex.App. 2006). Applicant shall file his petition for discretionary review with the Fourteenth Court of Appeals within 30 days of the date on which this Court's mandate issues.