Lewis, Ex Parte Adam Roberts

• Court: Court of Criminal Appeals of Texas
• Decided: September 14, 2005
• Docket: AP-75,235
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NOS. AP-75,234 & AP-75,235 EX PARTE ADAM ROBERTS LEWIS, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NUMBERS B-10,599-A and B-10,598-A

FROM THE 173^rd JUDICIAL DISTRICT COURT HENDERSON 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, § 3, et seq., V.A.C.C.P. Applicant was convicted of aggravated assault with a deadly weapon on a public servant and deadly conduct with a firearm, and received sentences of five and 20 years in prison. No notice of appeal was filed.

Applicant contends that he was denied his right to appeal. The trial court entered findings of fact and conclusions of law recommending Applicant be granted an out-of-time appeal. We agree. The trial court found, among other things, that Applicant intended to appeal his convictions and believed counsel had taken those steps necessary to preserve his appellate rights. Knowing that Applicant wanted to appeal, counsel had the duty to file a timely notice of appeal. Jones v. State, 98 S.W.3d 700, 702 (Tex. Crim. App. 2003); Ex parte Axel, 757 S.W.2d 369, 374 (Tex. Crim. App. 1988).

Habeas corpus relief is granted and Applicant is granted an out-of-time appeal from his conviction in cause number B-10,599-A and B-10,598-A from the 173rd District Court of Henderson 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 should Applicant desire to prosecute an appeal, he must take affirmative steps to see that notice of appeal is given within thirty (30) days after this Court's mandate has issued.

DO NOT PUBLISH

DELIVERED: September 14, 2005