Davis, Ex Parte Kevin Benti Jr.

• Court: Court of Criminal Appeals of Texas
• Decided: August 25, 2010
• Docket: AP-76,387
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. AP-76,387

EX PARTE KEVIN BENTI DAVIS, JR., Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. CR-28107 IN THE 217 TH JUDICIAL DISTRICT COURT FROM ANGELINA 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 this application for a writ of habeas corpus. Ex parte

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

robbery and sentenced to twelve years’ imprisonment.

Applicant contends, inter alia, that his appellate counsel rendered ineffective assistance

because he failed to timely respond when the court of appeals notified appellate counsel of the need

to amend the record and file an extension of time to file notice of appeal. Applicant’s notice of

appeal was filed one day late, and no motion for extension of time for filing notice of appeal was 2

received by the court of appeals within fifteen days of the deadline for filing notice of appeal. The

court of appeals sent notice to appellate counsel of the need to amend the record, but appellate

counsel did not read the notice until after the deadline had passed and the appeal had been dismissed

for want of jurisdiction.

Appellate counsel, who filed this habeas application on Applicant’s behalf, has provided an

affidavit confirming that he did not timely file a motion for an extension of time to file notice of

appeal. We find, therefore, that Applicant is entitled to the opportunity to file an out-of-time appeal

of the judgment of conviction in Cause No. CR-28107 from the 217th Judicial District Court of

Angelina County. Applicant is ordered returned to that time at which he may give a written notice

of appeal so that he may then, with the aid of counsel, obtain a meaningful appeal. All time limits

shall be calculated as if the sentence had been imposed on the date on which the mandate of this

Court issues. We hold that, should Applicant desire to prosecute an appeal, he must take affirmative

steps to file a written notice of appeal in the trial court within 30 days after the mandate of this Court

issues.

Delivered: August 25, 2010 Do Not Publish