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 murder and sentenced to forty years' imprisonment. The Tenth Court of Appeals affirmed his conviction. Fisher v. State, No. 10-02-00057-CR (Tex. App. - Waco, February 19, 2003).

Applicant contends that his appellate counsel rendered ineffective assistance because counsel failed to timely notify Applicant that his conviction had been affirmed and failed to advise him of his right to petition for discretionary review pro se.

Appellate counsel did not respond to the trial court's requests for a response to Applicant's habeas allegations. The record shows that appellate counsel was disbarred from the practice of law on October 9, 2010. The trial court has entered findings of fact and conclusions of law that appellate counsel failed to timely notify Applicant that his conviction had been affirmed and failed to advise him of his right to petition for discretionary review pro se. The trial court recommends that relief be granted. Ex parte Wilson, 956 S.W.2d 25 (Tex. Crim. App. 1997). 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 Tenth Court of Appeals in Cause No. 10-02-0057-CR that affirmed his conviction in Case No. F01-52054-L from the 265th Judicial District Court of Dallas County. Applicant shall file his petition for discretionary review with the Tenth Court of Appeals within 30 days of the date on which this Court's mandate issues.

Delivered: May 25, 2011

Do not publish