Summary
granting out-of-time appeal when appellate counsel was not timely informed of the appointment
Summary of this case from Calhoun v. StateOpinion
No. AP-75,396
Delivered: May 10, 2006. DO NOT PUBLISH.
On Application for a Writ of Habeas Corpus, Cause No. 33,049-B in the 124th District Court Gregg County.
OPINION
This is a post-conviction application for a writ of habeas corpus forwarded to this Court pursuant to Tex. Code Crim. Proc. art. 11.07, § 3, et seq. Applicant was convicted of the felony offense of evading arrest, and punishment was assessed at twenty years' confinement. No direct appeal was taken. Applicant contends that he was denied his right to appeal. Specifically, he contends that counsel was not informed of his appointment until after the date for perfecting appeal had expired. In its answer, the State stipulated that counsel was not timely informed of his appointment. After reviewing the record and the State's answer, the trial court entered an order recommending that Applicant be granted an out-of-time appeal. We agree. Counsel was not timely informed of his appointment. Habeas corpus relief is granted and Applicant is granted an out-of-time appeal from his conviction in cause number 33049-B from the 124th District Court of Gregg County. The proper remedy in a case such as this is to return Applicant to the point at which he can give notice of appeal. For purposes of the Texas Rules of Appellate Procedure, all time limits shall be calculated as if the conviction had been entered on the day that the mandate of this Court issues. We hold that Applicant, should he desire to prosecute an appeal, must take affirmative steps to see that notice of appeal is given within thirty days after the mandate of this Court has issued. Applicant's remaining claims are dismissed. See Ex parte Torres, 943 S.W.2d 469 (Tex.Crim.App. 1997).