Aguayo, Rafael Adrain

• Court: Court of Criminal Appeals of Texas
• Decided: October 15, 2014
• Docket: WR-82,152-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-82,152-01

EX PARTE RAFAEL ADRIAN AGUAYO, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. CR-0476-14-I IN THE 398TH DISTRICT COURT FROM HIDALGO 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 continuous sexual

abuse of a child and sentenced to thirty-three years’ imprisonment.

In this application, filed on Applicant’s behalf by his appellate counsel, Applicant alleges that

he was denied his right to appeal because notice of appeal was not timely filed. Appellate counsel

states that the failure to timely file the notice of appeal was an oversight on her behalf, and was not

through any fault of Applicant’s. 2

The trial court has determined that appellate counsel failed to timely file a notice of appeal.

We find that Applicant is entitled to the opportunity to file an out-of-time appeal of the judgment

of conviction in Cause No. CR-0476-14-I from the 398th District Court of Hidalgo 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Delivered: October 15, 2014 Do not publish