Dunigan, Ex Parte David Duane

• Court: Court of Criminal Appeals of Texas
• Decided: January 13, 2010
• Docket: AP-76,271
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. AP-76,271

EX PARTE DAVID DUANE DUNIGAN, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 32765CR/A IN THE 40 TH JUDICIAL DISTRICT COURT FROM ELLIS 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 evading arrest

and sentenced to twenty years’ imprisonment.

Applicant contends that his counsel rendered ineffective assistance because he failed to

timely file a notice of appeal despite telling Applicant that he would file the appeal on his behalf.

The trial court has determined that trial counsel failed to timely file a notice of appeal. We

find, therefore, that Applicant is entitled to the opportunity to file an out-of-time appeal of the 2

judgment of conviction in Cause No. 32765CR/A from the 40th Judicial District Court of Ellis

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Delivered: January 13, 2010 Do Not Publish