Tyeskie, Cabien Keshane

• Court: Court of Criminal Appeals of Texas
• Decided: June 7, 2023
• Docket: WR-94,838-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-94,838-01

EX PARTE CABIEN KESHANE TYESKIE, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 50975-B-H-1 IN THE 124TH DISTRICT COURT FROM GREGG COUNTY

Per curiam. YEARY , J., concurred.

OPINION

Applicant was convicted of aggravated robbery and sentenced to thirty years’ imprisonment.

His direct appeal was dismissed for want of jurisdiction because notice of appeal was not timely

filed. Tyeskie v. State, No. 06-22-00118-CR (tex. App. — Texarkana October 20, 2022) (not

designated for publication). 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 that he was denied his right to an appeal because counsel failed to timely

file his motion for new trial and notice of appeal. This Court has consistently held that it is trial

counsel’s responsibility to file notice of appeal if the defendant indicates a desire to appeal. Jones

v. State, 98 S.W.3d 700, 703 (Tex. Crim. App. 2003). However, in this case the trial court 2

apparently appointed appellate counsel on the same day Applicant was sentenced, without insuring

that a motion for new trial or notice of appeal had been filed. Appointed appellate counsel learned

that Applicant had retained appellate counsel, and filed a motion to withdraw from the representation

within the thirty-day period for filing notice of appeal, but the trial court did not grant the motion to

withdraw until after the thirty-day period had elapsed. Retained appellate counsel filed an untimely

motion for a new trial and notice of appeal after appointed appellate counsel had filed the motion

to withdraw, after the thirty-day deadline had passed, but before the trial court granted the motion

to withdraw.

It appears that Applicant is entitled to an out-of-time appeal on the basis of a “breakdown in

the system.” Relief is granted. Ex parte Riley, 193 S.W.3d 900 (Tex. Crim. App. 2006). Applicant

may file an out-of-time appeal of his conviction in cause number 50975-B from the 124th District

Court of Gregg 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.

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: June 7, 2023 Do not publish