Ramirez, Ex Parte Enrique

• Court: Court of Criminal Appeals of Texas
• Decided: September 29, 2004
• Docket: AP-75,021
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. 75,021 & 75,022 EX PARTE ENRIQUE RAMIREZ, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

FROM DALLAS COUNTY

Per Curiam.

O P I N I O N

This is a post-conviction application for a writ of habeas corpus forwarded to this Court pursuant to Article 11.07, § 3, et seq., V.A.C.C.P. Applicant was convicted of indecency with a child and aggravated sexual assault of a child. Punishment was assessed at 20 years in prison for the indecency with a child offense and 50 years for the aggravated sexual assault offense. Sentence was imposed in open court on February 12, 2001. The court of appeals dismissed Applicant's appeals for want of jurisdiction, stating that the notices were filed one day late and that requests for extension of time had not been filed.

Applicant contends that he was denied his right to appeal. The trial court entered findings of fact and conclusions of law recommending that Applicant be granted an out-of-time appeal. We agree. The duty to perfect an appeal attaches whether counsel is appointed or retained. Ex parte Axel, 757 S.W.2d 369, 374 (Tex. Crim. App. 1988). Counsel had the duty to timely file a motion for new trial or give timely notice of appeal, unless relieved by the trial court or replaced by other counsel.

Habeas corpus relief is granted and Applicant is granted an out-of-time appeal from his convictions in cause numbers W00-47810-S(A) and W00-72442-S(A) of Dallas County. The proper remedy in a case such as this is to return Applicant to the point at which he can give notice of appeal. For purposes of the Texas Rules of Appellate Procedure, all time limits shall be calculated as if the conviction had been entered on the day that the mandate of this Court issues. We hold that Applicant, should he desire to prosecute an appeal, must take affirmative steps to see that notice of appeal is given within thirty days after the mandate of this Court has issued.

Applicant's remaining allegations are dismissed. Ex parte Torres, 943 S.W.2d 469 (Tex. Crim. App. 1997).

DO NOT PUBLISH

DELIVERED: SEPTEMBER 29, 2004