McBrayer, Ex Parte Richard

• Court: Court of Criminal Appeals of Texas
• Decided: January 11, 2012
• Docket: AP-76,711
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. AP-76,711

EX PARTE RICHARD MCBRAYER, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 1043288D IN THE 297TH DISTRICT COURT FROM TARRANT 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 aggravated assault

and sentenced to fifteen years’ imprisonment. He did not appeal his conviction.

Applicant contends, among other things, that because trial counsel failed to object, he was

denied his right to appeal an August 17, 2009 order, amending the judgment and sentence. Based on

our own independent review of the record, we conclude that there was a breakdown in the system,

Ex parte Riley, 193 S.W.3d 900, 902 (Tex. Crim. App. 2006), and that Applicant is entitled to an 2

out-of-time appeal of the August 17 order in cause number 1043288D from the 297th District Court

of Tarrant 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 of the August 17

order. 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 him 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.

Applicant’s remaining claims are dismissed. Ex parte Torres, 943 S.W.2d 469 (Tex. Crim. App.

1997).

Delivered: January 11, 2012 Do Not Publish