Bailey, Ex Parte Elba John

• Court: Court of Criminal Appeals of Texas
• Decided: October 19, 2005
• Docket: AP-75,268
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. AP-75,268 EX PARTE ELBA RAY BAILEY, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

FROM CAUSE NO. 00-04-8430CR IN THE 25^TH JUDICIAL DISTRICT COURT

OF LAVACA COUNTY

Per curiam.

O P I N I O N

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 aggravated sexual assault, and punishment was assessed at ninety-nine years' confinement. No direct appeal was taken.

Applicant contends, inter alia, that he was denied his right to appeal. The trial court has entered findings of fact indicating that although Applicant expressed his desire to appeal his conviction to his trial counsel, counsel neither filed a motion for a new trial nor a timely notice of appeal. Furthermore, counsel never filed a motion to withdraw from his representation, or a motion to have new appellate counsel appointed for Applicant. We believe that Applicant is entitled to an out-of-time appeal. Tex. Code Crim. Proc. art. 26.04 (j) (2), requires appointed counsel to "represent the defendant until charges are dismissed, the defendant is acquitted, appeals are exhausted, or the attorney is relieved of his duties or replaced by other counsel". The duty to perfect an appeal attaches whether counsel is appointed or retained. See Ex parte Axel, 757 S.W.2d 369 (Tex. Crim. App. 1988). Knowing that Applicant wanted to appeal, counsel had the duty to timely file a motion for new trial or give timely notice of appeal, unless relieved by the trial court or replaced by other counsel.

Habeas corpus relief is granted and Applicant is granted an out-of-time appeal from his conviction in cause number 00-04-8430CR from the 25^th Judicial District Court of Lavaca 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).

DO NOT PUBLISH

DELIVERED: October 19, 2005