O'briant, Dylan Wade

• Court: Court of Criminal Appeals of Texas
• Decided: October 12, 2022
• Docket: WR-92,554-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-92,554-01

EX PARTE DYLAN WADE O’BRIANT, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 15-07-11740-1-CR IN THE 454TH DISTRICT COURT FROM MEDINA COUNTY

Per curiam.

OPINION

Applicant was convicted of sexual assault of a child and indecency with a child and

sentenced to consecutive terms of 18 years and 8 years’ imprisonment. The Fourth Court of Appeals

dismissed his direct appeal. O’Briant v. State, No. 04-20-00381-CR (Tex. App.–San Antonio, Sept.

30, 2020). Applicant filed this application for a writ of habeas corpus in the county of conviction,

and the district clerk forwarded it to this Court. See TEX . CODE CRIM . PROC. art. 11.07.

Applicant contends that he was denied the right to pursue a direct appeal because appellate

counsel failed to demonstrate that the trial court’s certification that Applicant had no right to appeal

was defective, or to file an amended certification showing a right to appeal. The trial court finds and

concludes that it consistently intended to permit Applicant to appeal from punishment. The trial court 2

was unaware that the appellate court required an amended certification of Applicant’s right to appeal.

The court concludes that the appeal was dismissed through no fault of Applicant. The trial court has

determined that Applicant is entitled to pursue an out-of-time appeal.

Relief is granted. Ex parte Axel, 757 S.W.2d 369 (Tex. Crim. App. 1988); Jones v. State, 98

S.W.3d 700 (Tex. Crim. App. 2003). Applicant may file an out-of-time appeal of the judgment of

conviction in cause number 15-07-11740-CR from the 454th District Court of Medina County.

Within ten days from the date of this Court’s mandate, the trial court shall determine whether

Applicant is indigent. If Applicant is indigent and wants to be represented by counsel, the trial court

shall appoint counsel to represent on direct appeal. Should Applicant decide to appeal, he must file

a written notice of appeal in the trial court within thirty days from the date of this Court’s mandate.

Copies of this opinion shall be sent to the Texas Department of Criminal Justice–Correctional

Institutions Division and the Board of Pardons and Paroles.

Delivered: October 12, 2022 Do not publish