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

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Delivered: May 8, 2013 Do not publish