McKinley, Donald Edward

• Court: Court of Criminal Appeals of Texas
• Decided: February 25, 2015
• Docket: WR-82,779-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-82,779-01

EX PARTE DONALD EDWARD MCKINLEY, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. B-41,729-A IN THE 358TH DISTRICT COURT FROM ECTOR 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 burglary of a

habitation and sentenced to fifty years’ imprisonment.

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

timely file a notice of appeal. Applicant’s counsel filed an untimely notice of appeal and the Court

of Appeals notified counsel of its untimeliness, affording counsel an opportunity to explain why the

Court should not dismiss the appeal. Counsel responded by filing a motion for an extension of time

for filing notice of appeal. In that motion, counsel explained that he had faxed a motion for new trial 2

to what he believed to be the number for the Ector County District Clerk. The fax went through, and

counsel believed that the appellate deadline had been extended by the timely filed motion for new

trial. However, when counsel later filed notice of appeal and received the notification from the Court

of Appeals, he discovered that he had sent the motion for new trial to the wrong fax number.

Nevertheless, noting the untimeliness of the motion for an extension, the Court of Appeals dismissed

Applicant’s appeal for want of jurisdiction.

Counsel’s motion for an extension of time for filing notice of appeal contains his admission

that he erroneously sent the motion for new trial to the wrong fax number. Therefore, we find that

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

in Cause No. B-41,729 from the 358th District Court of Ector 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: February 25, 2015 Do not publish