IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. AP-76,511

EX PARTE DANIEL TOLOPKA, II, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. CM-06-522-1 IN THE 278 TH JUDICIAL DISTRICT COURT FROM LEON 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 murder and sentenced to ninety-nine years’ imprisonment. The Seventh Court of Appeals affirmed his conviction. Tolopka v. State, No. 07-08-00008-CR (Tex. App. – Amarillo, January 31, 2010).

Applicant contends that his appellate counsel rendered ineffective assistance because counsel miscalculated the deadline for filing Applicant’s petition for discretionary review. We remanded this application to the trial court for findings of fact and conclusions of law.

The trial court has entered findings of fact and conclusions of law that any error in calculation of the deadline for filing Applicant’s petition for discretionary review was an error of law by appellate counsel. The trial court recommends that relief be granted. 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 Seventh Court of Appeals in Cause No. 07-08-00008-CR that affirmed his conviction in Case No. CM-06-522-1 from the 278th Judicial District Court of Leon County.

Applicant shall file his petition for discretionary review with the Seventh Court of Appeals within days of the date on which this Court’s mandate issues.

Delivered: March 9, 2011 Do not publish