This is an application for a writ of habeas corpus which was transmitted to this Court by the clerk of the trial court pursuant to the provisions of Article 11.07, V.A.C.C.P. Ex Parte Young, 418 S.W.2d 824 (Tex. Crim. App. 1967). Applicant was convicted of murder and punishment was assessed at fifty years imprisonment. Applicant's conviction was affirmed on appeal. Gutierrez v. State, 85 S.W.3d 446 (Tex. App.- Austin 2002, no pet.).

Applicant contends that his appellate counsel was ineffective for not timely informing him that his motion for rehearing had been denied by the court of appeals, thereby denying him an opportunity to file a timely petition for discretionary review.

In Ex parte Wilson, 956 S.W.2d 25 (Tex. Crim. App. 1997), we held that counsel renders ineffective assistance when counsel's action or inaction denies a defendant his opportunity to prepare and file a petition for discretionary review. The trial court found, based on the record, that counsel did not timely personally inform the Applicant that his motion for rehearing had been denied, and such inaction resulted in Applicant's failure to timely file a pro se petition for discretionary review. As a result, Applicant is entitled to an out-of-time petition for discretionary review. We agree.

Accordingly, Applicant is entitled to relief. The proper remedy is to return Applicant to the point at which he can file a petition for discretionary review. He may then follow the proper procedures in order that a meaningful petition for discretionary review may be filed. For purposes of the Texas Rules of Appellate Procedure, all time limits, including mandate, shall be calculated as if the Court of Appeals' decision had been rendered on the day the mandate of the Court in this cause issues. We hold that should Applicant desire to seek discretionary review, he must take affirmative steps to see that his petition is filed in the Court of Appeals within thirty days after the mandate of this Court has issued.

DELIVERED: September 10, 2003

DO NOT PUBLISH