Tuttle, Ex Parte Robert Edward

• Court: Court of Criminal Appeals of Texas
• Decided: November 1, 2006
• Docket: AP-75,533
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. AP-75,533 EX PARTE ROBERT EDWARD TUTTLE, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 0216743 IN THE 8^TH JUDICIAL DISTRICT COURT

FROM HOPKINS COUNTY

Per curiam.

O P I N I O N

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 a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of aggravated assault and sentenced to life imprisonment. His appointed appellate counsel failed to file a timely notice of appeal, and Applicant's direct appeal was dismissed for want of jurisdiction.

This Court granted Applicant an out-of-time appeal in response to Applicant's first writ of habeas corpus, on September 15, 2004. New appellate counsel was appointed to represent Applicant in his out-of-time appeal on September 24, 2004. The mandate of this Court issued on October 13, 2004. However, no notice of appeal was filed on Applicant's behalf, and his out-of-time appeal was not pursued.

In this writ, Applicant contends that appellate counsel appointed to represent him in his out-of-time appeal rendered ineffective assistance because he failed to communicate with Applicant, and failed to timely file a notice of appeal take any other action on Applicant's appeal. We remanded this application to the trial court for findings of fact and conclusions of law.

The trial court has determined that Applicant was denied his right to appeal because his notice of appeal and appellate brief were not timely filed. We find, therefore, that Applicant is entitled to a second opportunity to file an out-of-time appeal of the judgment of conviction in Cause No. 0216743 from the 8th Judicial District Court of Hopkins County, Texas. Applicant is ordered returned to that time at which he may give a written notice of appeal so that he may then 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, he 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: November 1, 2006

Do Not Publish