Lee, Kendale James

• Court: Court of Criminal Appeals of Texas
• Decided: February 28, 2024
• Docket: WR-80,044-02
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-80,044-02

EX PARTE KENDALE JAMES LEE, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 2013-CR-0038-Wl IN THE 175TH DISTRICT COURT FROM BEXAR COUNTY

Per curiam.

OPINION

Applicant pled nolo contendere to possession of a controlled substance with intent to deliver

and was sentenced to ten years’ imprisonment probated for eight years. His community supervision

was later revoked and he was sentenced to eight years’ imprisonment. Applicant filed this

application for a writ of habeas corpus in the county of conviction, and the district clerk forwarded

it to this Court. See TEX. CODE CRIM. PROC. art. 11.07.

Applicant contends that he was denied his right to an appeal because counsel failed to timely

file a notice of appeal. Based on the record, the trial court has found that counsel failed to properly

ascertain whether Applicant had the right to appeal and whether Applicant wished to appeal. The

trial court recommends granting an out-of-time appeal. 2

We agree. Relief is granted. Ex parte Axel, 757 S.W.2d 369 (Tex. Crim. App. 1988); Jones

v. State, 98 S.W.3d 700 (Tex. Crim. App. 2003). Applicant may file an out-of-time appeal of his

conviction in cause number 2013CR0038 from the 175th District Court of Bexar County. Within

ten days from the date of this Court’s mandate, the trial court shall determine whether Applicant is

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

counsel to represent him on direct appeal. Should Applicant decide to appeal, he must file a written

notice of appeal in the trial court within thirty days from the date of this Court’s mandate.

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

Institutions Division and the Board of Pardons and Paroles.

Delivered: February 28, 2024 Do not publish