Opinion
No. AP-75,371
Delivered: April 5, 2006. DO NOT PUBLISH.
On Application for a Writ of Habeas Corpus, Cause No. F38259 in the 249th Judicial District Court, Johnson County.
OPINION
This is a post-conviction application for a writ of habeas corpus forwarded to this Court pursuant to Tex. Code Crim. Proc. art. 11.07, § 3, et seq. Applicant was convicted of the felony offense of possession of a controlled substance with intent to deliver and possession of a firearm by a felon, and punishment was assessed at ninety-nine years' confinement. Applicant's appeal was dismissed for want of jurisdiction. Teague v. State, No. 10-05-00306-CR (Tex.App.-Waco, delivered September 14, 2005, no pet.). Applicant contends that he was denied his right to appeal. The trial court has entered findings of fact and conclusions of law recommending that Applicant be granted an out-of-time appeal. We agree. Tex. Code Crim. Proc. art. 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 F38259 from the 249th Judicial District Court of Johnson 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.