Opinion
WR-93 303-01
12-15-2021
EX PARTE WILLIE EARL HAYWOOD, Applicant
Do not publish
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 20-0970-CR-A-A IN THE 456TH DISTRICT COURT FROM GUADALUPE COUNTY
OPINION
PER CURIAM.
Applicant was convicted of possession of a controlled substance and sentenced to fifteen years' imprisonment. 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 through no fault of his own. The record shows that trial counsel advised Applicant of his right to appeal and of the deadline for filing notice of appeal, and filed a motion to withdraw from the representation. In that motion, trial counsel asked that counsel be appointed to represent Applicant on appeal. Trial counsel also stated in the motion that if appellate counsel was not timely appointed, he would file notice of appeal on Applicant's behalf. Although the trial court granted trial counsel's motion to withdraw from the representation, appellate counsel was not appointed at the same time, and was not in fact appointed until after the deadlines for filing notice of appeal and for requesting an extension to file notice of appeal had expired. because counsel failed to timely file a notice of appeal. Trial counsel was apparently not aware that appellate counsel had not been appointed, and therefore did not timely file notice of appeal on Applicant's behalf.
Based on the record, the trial court has found that Applicant was denied his right to appeal through no fault of his own. Relief is granted. Ex parte Axel, 757 S.W.2d 369 (Tex. Crim. App. 1988); Jones v. State, 98 S.W.3d 700 (Tex. Crim. App. 2003); 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 20-0970-CR-A from the 456th District Court of Guadalupe 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.