Hornsby, Ex Parte James William

• Court: Court of Criminal Appeals of Texas
• Decided: June 14, 2006
• Docket: AP-75,441
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. AP-75,441 EX PARTE JAMES WILLIAM HORNSBY, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

FROM CAUSE NO. 84675 IN THE CRIMINAL DISTRICT COURT OF JEFFERSON 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 murder, and punishment was assessed at fifty years' confinement. His direct appeal was dismissed for want of jurisdiction. Hornsby v. State, No. 09-02-00077-CR (Tex. App. - Beaumont, April 4, 2002, no pet.)

Applicant contends, inter alia, that he was denied his right to appeal. The trial court entered findings of fact and conclusions of law recommending that Applicant be granted an out-of-time appeal. We agree. The record indicates that the deadline for filing a notice of appeal passed while Applicant's motion for a new trial was still pending in the trial court. By the time appellate counsel was appointed in this case, the court of appeals had already lost jurisdiction over the appeal.

Habeas corpus relief is granted and Applicant is granted an out-of-time appeal from his conviction in cause number 84675 from the Criminal District Court of Jefferson 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.

Applicant's remaining claims are dismissed. See Ex parte Torres, 943 S.W.2d 469 (Tex. Crim. App. 1997).

DO NOT PUBLISH

DELIVERED: June 14, 2006