Heath, Ex Parte Tommy Jr.

• Court: Court of Criminal Appeals of Texas
• Decided: April 28, 2004
• Docket: AP-74,940
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. 74,940 EX PARTE TOMMY HEATH, JR., Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

FROM POTTER COUNTY

Per Curiam.

O P I N I O N

This is a post-conviction application for a writ of habeas corpus forwarded to this Court pursuant to Tex. Code Crim. Proc. art. 11.07, § 3, et seq. Applicant was convicted of the felony offense of robbery, and punishment was assessed at nine years confinement. No direct appeal was taken.

Applicant contends that he was denied his right to appeal. Tex. Code Crim. Proc. art. 26.04 (j)(2), requires appointed counsel to "represent the defendant until charges are dismissed, the defendant is acquitted, appeals are exhausted, or the attorney is relieved of his duties or replaced by other counsel". The duty to perfect an appeal attaches whether counsel is appointed or retained. See Ex parte Axel, 757 S.W.2d 369 (Tex. Crim. App. 1988). Knowing that Applicant wanted to appeal, counsel had the duty to timely file a motion for new trial or give timely notice of appeal, unless relieved by the trial court or replaced by other counsel. The record reflects that counsel erroneously calculated the date for filing a notice of appeal and motion for new trial, thereby depriving the Applicant of his right to an appeal. The Applicant is entitled to an out-of-time appeal.

Habeas corpus relief is granted and Applicant is granted an out-of-time appeal from his conviction in cause number 45,316-D from the 320th District Court of Potter County. The proper remedy in a case such as this is to return Applicant to the point at which he can give notice of appeal. For purposes of the Texas Rules of Appellate Procedure, all time limits shall be calculated as if the conviction had been entered on the day that the mandate of this Court issues. We hold that Applicant, should he desire to prosecute an appeal, must take affirmative steps to see that notice of appeal is given within thirty days after the mandate of this Court has issued.

DO NOT PUBLISH

DELIVERED: April 28, 2004