IN THE COURT OF CRIMINAL APPEALS
OF TEXAS

NO. 74,908

EX PARTE TONY LEWIS THOMAS, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

FROM HARRIS COUNTY

Per Curiam.

This is a post-conviction application for a writ of habeas corpus filed pursuant to Tex. Code Crim. Proc. art. 11.07. Applicant was convicted of aggravated robbery and his punishment was assessed at ninety-nine years imprisonment after Applicant was found to be a habitual offender. This conviction was affirmed, Thomas v. State, No. 01-00-202-CR (Tex. App. - Houston [1st], delivered November 9, 2000, no pet.).

Applicant contends that he was denied an opportunity to file a petition for discretionary review because his appellate attorney did not notify him that the conviction had been affirmed or what he needed to do to file such a petition. An affidavit filed by appellate counsel states that counsel has no record any notice of the affirmance was sent to Applicant until a year after the opinion was delivered. The trial court found that counsel was deficient for failing to notify the Applicant timely that the Court of Appeals had affirmed his conviction in the primary case. We believe the Applicant is entitled to an out-of-time petition for discretionary review.

Therefore, Applicant is entitled to relief. Ex parte Wilson, 965 S.W.2d 25 (Tex. Crim. App. 1997). The proper remedy in a case such as this 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 shall be calculated as if the Court of Appeals' decision had been rendered on the day the mandate of this Court 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.

All other allegations are dismissed. See Ex parte Torres, 943 S.W.2d 469 (Tex. Crim. App. 1997).

DELIVERED: March 10, 2004

DO NOT PUBLISH