Ex Parte Brown

Full title: EX PARTE JAIME MARSHALL BROWN, Applicant

Court: Court of Criminal Appeals of Texas

Date published: Jan 26, 2005

No. AP-75,068 (Tex. Crim. App. Jan. 26, 2005)

Opinion

No. AP-75,068

January 26, 2005.

On Application for a Writ of Habeas Corpus Trial Court Cause Number 401-80716-01 401^st Judicial District Court of Collin Count

PER CURIAM, Judge.

OPINION

This is a post-conviction application for a writ of habeas corpus forwarded to this Court pursuant to Article 11.07, § 3, et seq., Texas Code of Criminal Procedure. Applicant was convicted of the felony offense of indecency with a child, and the punishment was assessed at five years in prison. Applicant's direct appeal was dismissed for lack of jurisdiction because the notice of appeal was not timely. Brown v. State, No. 05-03-00129-CR (Tex.App.-Dallas July 18, 2003, no pet.). Applicant contends that he was denied his right to appeal. Based on affidavits from trial and appellate counsel, the trial court entered findings of fact and conclusions of law recommending that Applicant be granted an out-of-time appeal because appellate counsel failed to file the notice of appeal in timely manner despite Applicant's stated desire to pursue an appeal. The record also shows that counsel did not seek an extension of time for filing the notice of appeal pursuant to Rule 26.3 of the Texas Rules of Appellate Procedure. Habeas corpus relief is granted and Applicant is granted an out-of-time appeal from his conviction in cause number 401-80716-01 from the 401^st District Court of Collin 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.