Gomez, Ex Parte Joseph Michael

• Court: Court of Criminal Appeals of Texas
• Decided: October 5, 2005
• Docket: AP-75,261
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. AP-75,261 EX PARTE JOSEPH MICHAEL GOMEZ, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

FROM CAUSE NUMBER 12,177 IN THE 29TH

JUDICIAL DISTRICT COURT OF PALO PINTO COUNTY

Per curiam.

O P I N I O N

This is a post-conviction application for a writ of habeas corpus filed pursuant to Article 11.07, § 3, TEX.CODE CRIM.PROC. Applicant was convicted of aggravated sexual assault and punishment was assessed at confinement for fifty years. Appeal was dismissed because notice was untimely. Gomez v. State, No. 11-03-349-CR (Tex.App. - Eastland, delivered July 11, 2003, no pet.).

Applicant contends that he was denied his right to a meaningful appeal when his counsel failed to timely file notice of appeal. Counsel submitted an affidavit admitting that he did not correctly calculate the deadline for filing a motion for new trial and written notice of appeal after Applicant said he wanted to appeal. The trial court entered findings of fact and conclusions of law in which it found counsel failed to timely file notice of appeal, concluded counsel rendered ineffective assistance on appeal, and recommended that an out-of-time appeal be granted.

Relief is granted. Applicant is entitled to an out-of-time appeal in cause number 12,177 in the 29th Judicial District Court of Palo Pinto County. This cause is returned to that point in time at which Applicant may give written notice of appeal so that he may then, with the aid of counsel, obtain a meaningful appeal. For purposes of the Texas Rules of Appellate Procedure, all time limits shall be calculated as if the sentence had been imposed on the date that the mandate of this Court issues. We hold that should applicant desire to prosecute an appeal, he must take affirmative steps to see that written notice of appeal is given within thirty days after the mandate of this Court has issued.

DELIVERED: October 5, 2005

DO NOT PUBLISH