Theus, John C.

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-82,574-01
EX PARTE JOHN C. THEUS, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 1070888 IN THE 263RD DISTRICT COURT
FROM HARRIS 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 a 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 life imprisonment. The First Court of Appeals affirmed his conviction. Theus v. State,
No. 01-08-00284-CR (Tex. App. — Houston [1st Dist.] July 2, 2009).
Applicant contends that his appellate counsel rendered ineffective assistance because counsel
failed to advise him of his right to file a pro se petition for discretionary review. Appellate counsel
filed an affidavit with the trial court. Based on that affidavit, the trial court has entered findings of
fact and conclusions of law that appellate counsel attempted to advise Applicant of his right to file
2
a pro se petition for discretionary review, but that Applicant did not receive the notification. The
trial court recommends that relief be granted.
We find, therefore, that Applicant was denied his opportunity to petition this Court for
discretionary review due to a breakdown in the system. See Ex parte Riley, 193 S.W.3d 900 (Tex.
Crim. App. 2006). Applicant is entitled to the opportunity to file an out-of-time petition for
discretionary review of the judgment of the First Court of Appeals in Cause No. 01-08-00284-CR
that affirmed his conviction in Cause No. 1070888 from the 263rd District Court of Harris County.
Applicant shall file his petition for discretionary review with this Court within 30 days of the date
on which this Court’s mandate issues.
Delivered: January 14, 2015
Do not publish