IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
CAUSE NO. 2002-400,231-A IN THE 364TH JUDICIAL DISTRICT COURT
LUBBOCK COUNTY
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 Texas Code of Criminal Procedure article 11.07, § 3, et seq. Applicant was convicted of the felony offense of possession with intent to deliver, and punishment was assessed at life in prison. No direct appeal was taken.
Applicant contends that he was denied his right to appeal because his attorney did not timely file a notice of appeal. The trial court entered findings of fact and conclusions of law recommending that Applicant be granted an out-of-time appeal. We agree. Texas Code of Criminal Procedure article 26.04(j)(2) requires appointed counsel to "represent the defendant until charges are dismissed, the defendant is acquitted, appeals are exhausted, or the attorney is relieved of his duties or replaced by other counsel." The duty to perfect an appeal attaches whether counsel is appointed or retained. See Ex parte Axel, 757 S.W.2d 369 (Tex. Crim. App. 1988). Knowing that Applicant wanted to appeal, counsel had the duty to timely file a motion for new trial or give timely notice of appeal, unless relieved by the trial court or replaced by other counsel.
Habeas corpus relief is granted and Applicant is granted an out-of-time appeal from his conviction in cause number 2002-400,231-A from the 364th District Court of Lubbock 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.
DO NOT PUBLISH
DELIVERED: March 9, 2005