Waddleton, Ex Parte Marvin Iii

• Court: Court of Criminal Appeals of Texas
• Decided: September 29, 2010
• Docket: AP-76,427
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. AP-76,427

EX PARTE MARVIN WADDLETON, III, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 241-0085-06 IN THE 114 TH DISTRICT COURT FROM SMITH 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 a writ of habeas corpus. Ex parte

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

assault of a public servant and sentenced to life imprisonment. His direct appeal was dismissed by

the Twelfth Court for want of jurisdiction. Waddleton v. State, No. 12-06-00121-CR (Tex.

App.–Tyler, Jun. 7, 2006, no pet.) (unpublished).

Applicant contends, inter alia, that his counsel rendered ineffective assistance because the

notice of appeal did not include the certification of applicant’s right of appeal, which resulted in the 2

appeal being dismissed for want of jurisdiction.

The trial court has determined that applicant was denied his right to appeal due to no fault

of his own and he should be granted an out-of-time appeal. We find, therefore, that Applicant is

entitled to the opportunity to file an out-of-time appeal of the judgment of conviction in Cause No.

241-0085-06 from the 114th Judicial District Court of Smith County. Applicant is ordered returned

to that time at which he may give a written notice of appeal so that he 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, 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Delivered: September 29, 2010 Do Not Publish