McIntyre, Ex Parte James Deanta

• Court: Court of Criminal Appeals of Texas
• Decided: May 24, 2006
• Docket: AP-75,426
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. AP-75,426 EX PARTE JAMES DEANTA MCINTYRE, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 28672CR IN THE 40^TH DISTRICT COURT

ELLIS 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 Tex. Code Crim. Proc. art. 11.07, § 3, et seq. Applicant was convicted of the felony offense of indecency with a child and sentenced to confinement for twenty-five years. Applicant's appeal was dismissed. McIntyre v. State, No. 10-05-00253-CR (Tex. App.-Waco, delivered August 3, 2005, no. pet.).

Applicant contends that he was denied his right to appeal. The trial court entered findings of fact and conclusions of law recommending that Applicant be granted an out-of-time appeal. We agree. Appellate counsel was not notified of his appointment until after the deadline for perfecting appeal had expired.

Habeas corpus relief is granted, and Applicant is granted an out-of-time appeal from his conviction in cause number 28672CR from the 40^th District Court of Ellis 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 Applicant, should he desire to prosecute an appeal, must take affirmative steps to see that notice of appeal is given within thirty days after the mandate of this Court has issued.

DO NOT PUBLISH

DELIVERED: MAY 24, 2006