Nash, Allen Odonald

• Court: Court of Criminal Appeals of Texas
• Decided: May 4, 2016
• Docket: WR-84,725-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-84,725-01

EX PARTE ALLEN ODONALD NASH, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 14-12-13270-CR IN THE 9TH DISTRICT COURT FROM MONTGOMERY 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 five counts of

aggravated sexual assault of a child and sentenced to life imprisonment for each count.

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

timely file a notice of appeal.

The trial court noted that appellate counsel’s affidavit did not say whether Applicant

communicated a desire to appeal during the time for perfecting appeal, and then concluded that 2

Applicant’s inaction waived his appeal. However, counsel’s affidavit says that he confirmed that a

notice of appeal had been filed after he met with Applicant on the day of his appointment. Counsel

admitted it was his responsibility to verify whether a notice of appeal was filed and he took

responsibility for the failure to perfect appeal.

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

judgments of conviction in Cause No. 14-12-13270-CR from the 9th District Court of Montgomery

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: May 4, 2016 Do not publish