Spicer, Ex Parte Michael David

• Court: Court of Criminal Appeals of Texas
• Decided: September 14, 2011
• Docket: AP-76,634
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. AP-76,634

EX PARTE MICHAEL DAVID SPICER, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 32649CR/B IN THE 40TH DISTRICT COURT FROM ELLIS 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 writ of habeas corpus.

Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of

two counts of aggravated sexual assault of a child and sentenced to thirty years’ confinement

on each count.

Applicant contends that counsel rendered ineffective assistance because counsel failed

to timely file a notice of appeal. We granted Applicant an out-of-time appeal in his first 2

11.07 application. Appellate counsel failed to timely file a notice of appeal after this Court

granted relief in that application. Applicant was again denied his right to appeal due to a

counsel’s failure to file a notice of appeal.

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

appeal of the judgment of conviction in Case No. 32649CR from the 40th Judicial District

Court of Ellis County. Applicant is ordered returned to that time at which may give a written

notice of appeal so that may then, with the aid of counsel, obtain a meaningful 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,

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.

Delivered: September 14, 2011 Do Not Publish