Johnson, Ex Parte Mark Anthony

• Court: Court of Criminal Appeals of Texas
• Decided: October 26, 2005
• Docket: AP-75,271
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. AP-75,271 EX PARTE MARK ANTHONY JOHNSON, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. F09316-200-A IN THE 145TH JUDICIAL DISTRICT COURT

FROM NACOGDOCHES 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 Article 11.07, Section 3, of the Texas Code of Criminal Procedure. Applicant was convicted of the felony offense of sexual assault, and punishment was assessed at confinement for five years. No direct appeal was taken.

Applicant contends, inter alia, that he was denied his right to appeal due to counsel's ineffective assistance. Article 26.04(j)(2), of the Texas Code of Criminal Procedure, 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 ensure that a notice of appeal was filed in a timely manner unless relieved by the trial court or replaced by other counsel. The record indicates counsel failed to perform his duty.

Accordingly, habeas corpus relief is granted and Applicant is granted an out-of-time appeal from his conviction in cause number F09316-200-A from the 145th District Court of Nacogdoches 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DO NOT PUBLISH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: October 26, 2005