Longoria, Oscar

• Court: Court of Criminal Appeals of Texas
• Decided: November 7, 2018
• Docket: WR-89,096-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-89,096-01

EX PARTE OSCAR LONGORIA, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 2013-438,023-A IN THE 137TH DISTRICT COURT FROM LUBBOCK 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 manslaughter and

sentenced to seven years’ imprisonment.

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

timely file a notice of appeal. Trial counsel has submitted an affidavit, explaining that he

erroneously calculated the deadline for filing a motion for new trial from the date the judgment was

filed, rather than the date the sentence was imposed in open court. Trial counsel’s untimely motion 2

for new trial did not extend the deadline for filing notice of appeal, and the notice of appeal filed by

trial counsel was also untimely.

The trial court has determined that counsel failed to timely file a notice of appeal. We find

that Applicant is entitled to the opportunity to file an out-of-time appeal of the judgment of

conviction in Cause No. 2013-438,023-A from the 137th District Court of Lubbock 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Delivered: November 7, 2018 Do not publish