Barley, Ex Parte James Richmond Jr.

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NOS. AP-76,384 & AP-76,385

EX PARTE JAMES RICHMOND BARLEY, JR., Applicant

ON APPLICATIONS FOR A WRIT OF HABEAS CORPUS CAUSE NOS. 50119 & 50120 IN THE 268TH DISTRICT COURT FROM FORT BEND 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 these applications for a writ of habeas corpus. Ex

parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of two counts

of indecency with a child and sentenced to twenty years’ imprisonment on each count. The

Fourteenth Court of Appeals dismissed his appeal in cause number 50120. Barley v. State, No. 14-

09-00352-CR (Tex. App.–Houston [14th Dist.] 2009, no pet.).

Applicant contends that his trial counsel rendered ineffective assistance because he failed,

among other things, to file timely notices of appeal. The trial court found that trial and appellate 2

counsel failed to file timely notices of appeal. It recommended that we grant Applicant out-of-time

appeals. We agree with the trial court’s recommendation. But we have repeatedly held that trial

rather than appellate counsel is responsible for ensuring that written notice of appeal is filed with the

trial court. Jones v. State, 98 S.W.3d 700, 703 (Tex. Crim. App. 2003); Ex parte Axel, 757 S.W.2d

369, 374 (Tex. Crim. App. 1988). Based on our own independent review of the record, we find that

trial counsel failed to file timely notices of appeal. Applicant is entitled to the opportunity to file out-

of-time appeals of the judgments of conviction in cause numbers 50119 and 50120 from the 268th

Judicial District Court of Fort Bend County. Applicant is ordered returned to that time at which he

may give written notices of appeal so that he may then, with the aid of counsel, obtain meaningful

appeals. All time limits shall be calculated as if the sentences had been imposed on the date on which

the mandate of this Court issues. We hold that, should Applicant desire to prosecute appeals, he must

take affirmative steps to file written notices of appeal in the trial court within 30 days after the

mandate of this Court issues.

Delivered: August 25, 2010 Do Not Publish