Kelly, James Clayton

• Court: Court of Criminal Appeals of Texas
• Decided: September 17, 2014
• Docket: WR-81,937-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-81,937-01

EX PARTE JAMES CLAYTON KELLY, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 2010CR2879A IN THE 379th DISTRICT COURT FROM BEXAR COUNTY

Per curiam.

OPINION

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 a writ of habeas corpus. Ex parte

Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of murder and

sentenced to forty years’ imprisonment.

Applicant contends that his counsel rendered ineffective assistance because he failed to

timely file a notice of appeal.

The trial court has determined, based upon the record and counsel’s affidavit, that counsel

failed to timely file a notice of appeal. We find that Applicant is entitled to the opportunity to file 2

an out-of-time appeal of the judgment of conviction in Cause No. 2010CR2879A from the 379th

District Court of Bexar 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.

Within ten days of the issuance of this opinion, the trial court shall determine whether Applicant is

indigent. If Applicant is indigent and wishes to be represented by counsel, the trial court shall

immediately appoint an attorney to represent Applicant on direct 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.

Copies of this opinion shall be sent to the Texas Department of Criminal Justice-Correctional

Institutions Division and Pardons and Paroles Division.

Delivered: September 17, 2014 Do not publish