FOSTER, BILLY RAY Jr.

• Court: Court of Criminal Appeals of Texas
• Decided: April 17, 2019
• Docket: WR-22,701-06
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-22,701-06

EX PARTE BILLY RAY FOSTER, JR., Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 11665-D IN THE 350TH DISTRICT COURT FROM TAYLOR 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 unlawful

possession of firearm by felon and sentenced to eighty (80) years’ imprisonment.

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

timely file a notice of appeal. Counsel acknowledges, and the appellate court’s memorandum

opinion confirms, that counsel knew Applicant wanted to file an appeal and that counsel failed to

timely file a notice of appeal because of computer problems.

The trial court has determined that counsel failed to timely file a notice of appeal. We find 2

that Applicant is entitled to the opportunity to file an out-of-time appeal of the judgment of

conviction in Cause No. 11665-D from the 350th District Court of Taylor 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. Within ten days of the issuance of this opinion,

the trial court shall determine whether Applicant is indigent. If Applicant is indigent and wishes to

be represented by counsel, the trial court shall immediately appoint an attorney to represent

Applicant on direct 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.

Copies of this opinion shall be sent to the Texas Department of Criminal Justice-Correctional

Institutions Division and Pardons and Paroles Division.

Delivered: April 17, 2019 Do not publish