Noonkester, Kevin Wade

• Court: Court of Criminal Appeals of Texas
• Decided: March 12, 2014
• Docket: WR-80,431-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-80,431-01

EX PARTE KEVIN WADE NOONKESTER, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. W10809-1 IN THE 355TH DISTRICT COURT FROM HOOD 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 sexual assault

of a child and sentenced to fifteen years’ imprisonment. The Second Court of Appeals dismissed his

appeal for lack of jurisdiction. Noonkester v. State, No. 02-11-00198-CR (Tex. App.–Ft. Worth June

30, 2011).

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

timely file a notice of appeal. We remanded this application to the trial court for findings of fact and

conclusions of law. 2

The trial court has determined that counsel failed to timely file a notice of appeal. We find

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

conviction in Cause No. W10809-1 from the 355th District Court of Hood 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Delivered: March 12, 2014 Do not publish