Opinion
NO. WR-89,027-02
05-08-2019
EX PARTE JEROME WENDALL ELLIS, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 17-03-29924-D-2 IN THE 377TH DISTRICT COURT FROM VICTORIA 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 one count of tampering with evidence and one count of murder, and was sentenced to twenty years' imprisonment for the imprisonment.
Applicant contends that his first chair trial counsel rendered ineffective assistance because he failed to timely file a notice of appeal. We remanded this application to the trial court for findings of fact and conclusions of law.
The trial court has determined that although first chair trial counsel was one of three attorneys who represented Applicant on appeal, he was terminated after filing a motion for new trial. The trial court finds that although none of the three appellate attorneys were notified that Applicant's motion for new trial had been overruled by operation of law, the two appellate attorneys who remained on the case after trial counsel had been terminated were aware of the date upon which the motion for new trial had been filed, and therefore could easily have known when the motion for new trial would be overruled by operation of law. Therefore, the trial court finds that those two attorneys represented Applicant during the applicable time for filing notice of appeal, and that Applicant was denied his right to a meaningful appeal because the two remaining attorneys failed to timely file notice of appeal. The trial court's findings of fact and conclusions of law are supported by the record.
We find that Applicant is entitled to the opportunity to file an out-of-time appeal of the judgment of conviction in Cause No. 17-03-29924-D-2 from the 377th District Court of Victoria County. Applicant is ordered returned to that time at which he may give a written notice of appeal so that he may then, with the aid of counsel, obtain a meaningful appeal. Within ten days of the issuance of this opinion, the trial court shall determine whether Applicant is indigent. If Applicant is indigent and wishes to be represented by counsel, the trial court shall immediately appoint an attorney to represent Applicant on direct appeal. All time limits shall be calculated as if the sentence had been imposed on the date on which the mandate of this Court issues. We hold that, should Applicant desire to prosecute an appeal, he must take affirmative steps to file a written notice of appeal in the trial court within 30 days after the mandate of this Court issues.
Copies of this opinion shall be sent to the Texas Department of Criminal Justice-Correctional Institutions Division and Pardons and Paroles Division. Delivered: May 8, 2019 Do not publish