IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
FROM HARRIS COUNTY
O P I N I O N
This is an application for a writ of habeas corpus which was transmitted to this Court by the clerk of the trial court pursuant to the provisions of the Texas Code of Criminal Procedure, Article 11.07. Ex parte Young, 418 S.W.2d 824, 824 (Tex. Crim. App. 1967). Applicant was convicted of possession of a controlled substance, specifically cocaine, with intent to deliver. Applicant's sentence was assessed at thirty-five years imprisonment. On appeal, Applicant's appellate counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967). Thereafter, in an unpublished opinion, Applicant's conviction was affirmed by the Fourteenth Court of Appeals. Morris v. State, No. 14-98-01446-CR (Tex. App. - Harris 1999, no pet.).
Applicant contends, among other things, that his appellate counsel rendered ineffective assistance because he failed to provide Applicant with a copy of the Anders brief that he had filed on appeal, thereby denying him the opportunity to file a pro se appellate brief. Applicant also alleges that counsel did not comply with Anders because the brief failed to identify anything in the record that would have arguably supported his appeal.
The trial court has entered findings of fact and conclusions of law and has determined that Applicant was not denied effective assistance of counsel on appeal. However, we do not believe that those findings are supported by the record. Ex parte Young, 479 S.W.2d 45, 46 (Tex. Crim. App. 1972). Consequently, after a review of the record, including appellant counsel's affidavit, we find that appellate counsel rendered ineffective assistance and Applicant is therefore entitled to an out-of-time appeal from the judgment in cause number 773,201 from the 178th Judicial District Court of Harris County, Texas. Applicant's right to appeal is limited to the opportunity to file a pro se appellate brief in the Fourteenth Court of Appeals of Texas. Therefore, Applicant is ordered returned to that point in time at which he may give a written notice of appeal so that he may obtain a meaningful appeal. For purposes of the Texas Rules of Appellate Procedure, all time limits shall be calculated as if the sentences had been imposed on the date that the mandate of this Court issues. We hold that should Applicant desire to prosecute an appeal, he must take affirmative steps to see that a written notice of appeal is filed in the Fourteenth Court of Appeals within thirty days after the mandate of this Court has issued.
Applicant's remaining claims are dismissed. Ex parte Torres, 943 S.W.2d 469, 472 (Tex. Crim. App. 1997) ("a 'denial' signifies that we addressed and rejected the merits of a particular claim while a 'dismissal' means that we declined to consider the claim for reasons unrelated to the claim's merits.").
Do Not Publish
Delivered: June 30, 2004