Mesquiti, Ex Parte Edward Acuna Jr.

• Court: Court of Criminal Appeals of Texas
• Decided: November 5, 2003
• Docket: AP-74,819
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. 74,819

EX PARTE EDWARD ACUNA MESQUITI, JR., Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

FROM BEXAR COUNTY

Per Curiam.

O P I N I O N

This is a post-conviction application for a writ of habeas corpus filed pursuant to Article 11.07, V.A.C.C.P. Applicant was convicted of robbery and punishment was assessed at fifty years imprisonment after Applicant was found to be a habitual offender. Appeal was dismissed because notice was untimely. Mesquiti v. State, No. 04-02-672-CR (Tex.App. - San Antonio, delivered November 13, 2002, no pet.).

Applicant contends that he was denied his right to a meaningful appeal when his counsel failed to advise him of his appellate rights. Applicant's pro se notice of appeal was untimely filed, and counsel's affidavit admits that he never withdrew or advised Applicant of his appellate rights. The trial court entered findings of fact and conclusions of law in which it concluded counsel rendered ineffective assistance on appeal, and recommended that an out-of-time appeal be granted.

Relief is granted. Applicant is entitled to an out-of-time appeal in cause number 2001-CR-5798 in the 290th Judicial District Court of Bexar County. This cause is returned to that point in time at which Applicant may give written notice of appeal so that he may then, with the aid of counsel, obtain a meaningful appeal. For purposes of the Texas Rules of Appellate Procedure, all time limits shall be calculated as if the sentence had been imposed on the date that the mandate of this Court issues. We hold that should Applicant desire to prosecute an appeal, he must take affirmative steps to see that written notice of appeal is given within thirty days after the mandate of this Court has issued.

DELIVERED: November 5, 2003

DO NOT PUBLISH