Carmona, Ex Parte Jose

• Court: Court of Criminal Appeals of Texas
• Decided: June 21, 2006
• Docket: AP-75,450
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NOS. AP-75,449, AP-75,450 & AP-75,451

EX PARTE JOSE CARMONA, Applicant

ON APPLICATIONS FOR A WRIT OF HABEAS CORPUS

CAUSE NOS. 4077, 4078, & 4323 IN THE 109^TH DISTRICT COURT

ANDREWS COUNTY

Per curiam.

O P I N I O N

These are post-conviction applications for a writ of habeas corpus forwarded to this Court pursuant to Tex. Code Crim. Proc. art. 11.07. Applicant was convicted of two counts of indecency with a child and three counts of aggravated sexual assault of a child. Applicant was sentenced to confinement for five years for each indecency with a child count and for ten years for each aggravated sexual assault of a child count. Applicant's appeals were dismissed for want of jurisdiction. Carmona v. State, Nos. 08-04-00019-CR, 08-04-00020-CR, 08-04-00021-CR (Tex. App.-El Paso, delivered April 1, 2004, no pet.).

Applicant contends that he was denied his right to appeal his convictions. The trial court entered findings of fact and conclusions of law recommending that Applicant be granted out-of-time appeals. We agree. 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 out-of-time appeals from his convictions in cause numbers 4077, 4078, and 4323 from the 109th District Court of Andrews County. The proper remedy in a case such as this is to return Applicant to the point at which he can file notices 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.

DO NOT PUBLISH

DELIVERED JUNE 21, 2006