Tryon, Ex Parte William

• Court: Court of Criminal Appeals of Texas
• Decided: April 13, 2005
• Docket: AP-75,150
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. AP-75,150 EX PARTE WILLIAM TRYON, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

FROM ECTOR 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 Tex. Code Crim. Proc. art. 11.07, § 3, et seq.. Applicant was convicted of the felony offense of possession of a controlled substance, and punishment was assessed at eight years' confinement. His direct appeal was dismissed for want of jurisdiction.

Applicant contends, inter alia, that he was denied his right to appeal. The trial court has entered findings of fact which indicate that applicant should be granted an out-of-time appeal. We agree. According to the findings of fact, applicant was convicted on August 18, 2004, and requested the appointment of appellate counsel on August 19, 2004. The deadline for filing a notice of appeal in his case was September 17, 2004. Appellate counsel was appointed on September 1, 2004, but through a clerical error was not informed of the appointment until October 13, 2004, almost a month after the filing deadline. The Eleventh Court of Appeals dismissed applicant's appeal on October 28, 2004, for want of jurisdiction. The trial court also found that applicant intended to appeal this conviction, and that he took what he believed to be the steps necessary to do so. However, through no fault of his own, applicant was denied the assistance of counsel on appeal.

Habeas corpus relief is granted, and applicant is granted an out-of-time appeal from his conviction in cause number B-31,294 from the 161st District Court of Ector 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 claims are dismissed. See Ex parte Torres, 943 S.W.2d 469 (Tex. Crim. App. 1997).

DO NOT PUBLISH

DELIVERED: April 13, 2005