Ex Parte Mendoza

Full title: Ex Parte RICARDO FLORES MENDOZA, Applicant

Court: Court of Criminal Appeals of Texas

Date published: Jan 31, 2007

No. AP-75,600 (Tex. Crim. App. Jan. 31, 2007)

Opinion

No. AP-75,600

Delivered: January 31, 2007. DO NOT PUBLISH.

On Application for A Writ of Habeas Corpus Cause No. W-48446-01-E In the 108^TH Judicial District Court from Potter County.

OPNION

PER CURIAM.

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 possession of a deadly weapon in a penal institution and sentenced to seven years' imprisonment. Applicant contends that he was denied his right to appeal because trial counsel failed to timely file a notice of appeal. The record contains a copy of the trial court's certification of Applicant's right to appeal, indicating that this was not a plea bargain case, and that Applicant had the right to appeal the conviction. Applicant's trial counsel has submitted an affidavit, stating that at the time of the conviction Applicant indicated his desire to appeal. Trial counsel filed a motion for a new trial, and case was transferred to the appellate attorney for State Counsel for Offenders. However, according to counsel's affidavit, an error occurred during the transfer of Applicant's file, resulting in a failure to note Applicant's desire to appeal his conviction. Counsel concedes that State Counsel for Offenders failed to file a timely notice of appeal in Applicant's case, and that this failure was in no way due to Applicant's own actions. 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. 48,446-01-E from the 108^th Judicial District Court of Potter 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.