Gibbs, Ex Parte Randy Wayne

• Court: Court of Criminal Appeals of Texas
• Decided: June 6, 2007
• Docket: AP-75,685
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. AP-75,685 EX PARTE RANDY WAYNE GIBBS, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. CR05-00384A IN THE 294TH DISTRICT COURT

FROM VAN ZANDT COUNTY

Per curiam.

O P I N I O N

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 writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of possession or transport of chemical with intent to manufacture controlled substance and sentenced to sixty-five (65) years' imprisonment. No direct appeal has been taken.

Applicant contends that his appellate counsel rendered ineffective assistance by missing the deadline for filing a notice of appeal because she inadvertently failed to calendar the appellate deadlines after she received the notice of appointment on appeal. Counsel has filed an affidavit acknowledging that Applicant wanted to appeal and that her failure to file a notice of appeal was the result of a mistake.

The trial court has determined that counsel's deficient performance prejudiced Applicant by causing him to lose the opportunity to perfect an appeal. The court recommends granting relief. We find, therefore, that Applicant is entitled to the opportunity to file an out-of-time appeal of the judgment of conviction in Case No. CR05-00384 from the 294th Judicial District Court of Van Zandt 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: June 6, 2007

Do Not Publish