Cantu, Ex Parte Jimmy

• Court: Court of Criminal Appeals of Texas
• Decided: August 31, 2005
• Docket: AP-75,221
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. AP-75,221 EX PARTE JIMMY CANTU, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NUMBER C-371-006878-0696891-A

FROM TARRANT 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 Article 11.07, § 3, et seq., V.A.C.C.P. Applicant was convicted of possession with the intent to deliver a controlled substance and sentenced to ten years in prison. No notice of appeal was filed.

Applicant contends that he was denied his right to appeal. The trial court entered findings of fact and conclusions of law recommending that Applicant be granted an out-of-time appeal. We agree. In his affidavit counsel states that Applicant informed him that he wanted to appeal, and that he failed to file a notice of appeal or move to withdraw from the case. Knowing that Applicant wanted to appeal, counsel had the duty to file a timely notice of appeal. Jones v. State, 98 S.W.3d 700, 702 (Tex. Crim. App. 2003); Ex parte Axel, 757 S.W.2d 369, 374 (Tex. Crim. App. 1988).

Habeas corpus relief is granted and Applicant is granted an out-of-time appeal from his conviction in cause number C-371-006878-0696891-A from the 371^st District Court of Tarrant 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 should Applicant desire to prosecute an appeal, he must take affirmative steps to see that notice of appeal is given within thirty (30) days after this Court's mandate has issued.

DO NOT PUBLISH

DELIVERED: August 31, 2005