Powell, Stewart Ray

• Court: Court of Criminal Appeals of Texas
• Decided: December 21, 2022
• Docket: WR-94,068-02
• Status: Published

Opinion

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IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-94,068-02

EX PARTE STEWART RAY POWELL, Applicant

ON APPLICATION FOR WRIT OF HABEAS CORPUS CAUSE NO. 1098422-A IN THE 183RD DISTRICT COURT FROM HARRIS COUNTY

Per curiam. NEWELL, J. concurred.

OPINION

Applicant was convicted of driving while intoxicated, third or more, and sentenced to

eighteen years’ imprisonment. He 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, among other things, that he was denied his right to an appeal because

trial counsel failed to timely file a notice of appeal. On September 14, 2009, the trial court entered

an order designating issues and seeking an affidavit from both trial and appellate counsels. After no

further action on the trial court’s part, the district clerk forwarded this applications to this Court

under Texas Rule of Appellate Procedure 73.4(b)(5) in August 2022.

The record reflects that Applicant informed counsel that he wished to appeal and appellate 2

counsel was appointed, but not until approximately 60 days had passed. Appellate counsel could not

file a notice of appeal and Applicant filed this habeas application to obtain an out of time appeal, but

no timely action was taken by the county. Based on this Court’s review of the record, we find

Applicant is entitled to relief.

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 his conviction

in cause number 1098422 from the 183rd District Court of Harris 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 him 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.

Because we grant relief in the form of an out-of-time appeal, Applicant’s remaining

claims challenging his conviction are dismissed. Ex parte Torres, 943 S.W.2d 469, 475 (Tex.

Crim. App. 1997).

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: December 21, 2022 Do not publish