Curry, Ex Parte Tony Canandus

• Court: Court of Criminal Appeals of Texas
• Decided: April 12, 2006
• Docket: AP-75,384
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. AP-75,384 EX PARTE TONY CANANDUS CURRY, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

FROM CAUSE NO. 38,417 IN THE 400^TH JUDICIAL DISTRICT COURT OF FORT BEND 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 robbery, and punishment was assessed at twenty-five years' confinement. No direct appeal was taken.

Applicant contends, inter alia, 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. 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. In this case, counsel filed a motion seeking to withdraw on the day after sentencing. Applicant was informed of counsel's withdrawal, and of the thirty-day time limit for filing a notice of appeal. Applicant filed a request with the trial court for appointment of appellate counsel, but this request was not forwarded to the trial court until the date Applicant's notice of appeal was due. The trial court granted trial counsel's motion to withdraw, but did not appoint appellate counsel until after the appellate deadline. Therefore, Applicant was without counsel during the time for filing a notice of appeal.

Habeas corpus relief is granted and Applicant is granted an out-of-time appeal from his conviction in cause number 38,417 from the 400th District Court of Fort Bend 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: April 12, 2006