IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. AP-76,402

EX PARTE DAVID HARDEMAN, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 3021525 IN THE 390^TH DISTRICT COURT

FROM TRAVIS 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 writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of one count of aggravated assault, sentenced to eighty years’ imprisonment and one count of attempted murder, sentenced to ninety-nine years’ imprisonment. The Third Court of Appeals affirmed his conviction. Hardeman v. State, No. 03-04-005236-CR (Tex. App.–Austin, delivered May 5, 2006).

            Applicant contends that his appellate counsel rendered ineffective assistance because counsel failed to timely file a petition for discretionary review on his behalf after informing Applicant that he would do so.

            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 failed to timely file a petition for discretionary review. The trial court recommends that relief be granted. Ex parte Wilson, 956 S.W.2d 25 (Tex. Crim. App. 1997). We agree. 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 Third Court of Appeals in Cause No. 03-04-00536-CR that affirmed his conviction in Case No. 3021525 from the 390^th Judicial District Court of Travis County. Applicant shall file his petition for discretionary review with the Third Court of Appeals within 30 days of the date on which this Court’s mandate issues.

Delivered: August 25, 2010

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