IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. AP-76,658

EX PARTE GREGORY WAYNE MCAFEE, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 04CR1304 IN THE 212TH DISTRICT COURT FROM GALVESTON 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 aggravated sexual assault of a child and sentenced to thirty years’ imprisonment. The Fourteenth Court of Appeals affirmed his conviction. Mcafee v. State, No. 14-07-00078-CR (Tex. App.–Houston October 21, 2008).

Applicant contends that his appellate counsel failed to timely notify Applicant that his conviction had been affirmed.

Appellate counsel filed an affidavit with the trial court. Based on that affidavit, the trial court recommends that relief be granted. Ex parte Riley, 193 S.W.3d 900 (Tex. Crim. App. 2003). 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. 14-07-00078- CR that affirmed his conviction in Case No. 04CR1304 from the 212th Judicial District Court of Galveston County. Applicant shall file his petition for discretionary review with this Court within days of the date on which this Court’s mandate issues.

Delivered: October 12, 2011 Do not publish