Garner, Ex Parte James Guy

• Court: Court of Criminal Appeals of Texas
• Decided: September 21, 2011
• Docket: AP-76,643
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NOS. AP-76,642, AP-76,643 & AP-76,644

EX PARTE JAMES GUY GARNER, Applicant

ON APPLICATIONS FOR WRITS OF HABEAS CORPUS CAUSE NO. 17273 IN THE 329TH DISTRICT COURT FROM WHARTON 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 these applications for writs of habeas corpus. Ex

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

of continuous violence against the family and two counts of abandoning a child without intent to

return. He was sentenced to eight years’ imprisonment on each count.

Applicant contends that he was deprived of his right to appeal his convictions through no

fault of his own.

It is apparent from the face of the record that, though appellate counsel was appointed in 2

timely fashion, he was not notified of that appointment until well after notice of appeal could be

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

judgments of conviction in Cause No. 17273 from the 329th Judicial District Court of Wharton

County. Ex parte Riley, 193 S.W.3d 900, 902 (Tex. Crim. App. 2006). 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.

Delivered: September 21, 2011 Do Not Publish