Mendoza, David T

• Court: Court of Criminal Appeals of Texas
• Decided: January 15, 2014
• Docket: WR-80,593-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-80,593-01

EX PARTE DAVID T. MENDOZA, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 2006-414,757-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 aggravated

assault and sentenced to twenty years’ imprisonment.

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

timely file a notice of appeal. Trial counsel submitted an affidavit in which he concedes that

although Applicant has always maintained that he wanted to appeal this conviction, and although

counsel filed a motion for new trial on Applicant’s behalf, counsel did not file notice of appeal

because he did not receive payment of fees to do so. 2

The trial court has determined that counsel failed to timely file a notice of appeal, and did

not comply with the procedural requirements necessary to ensure that Applicant received appointed

appellate counsel. The trial court finds that counsel’s failure to file notice of appeal was not a matter

of trial strategy.

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

judgment of conviction in Cause No. 2006-414,757-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: January 15, 2014 Do not publish