IN THE COURT OF CRIMINAL APPEALS
OF TEXAS




NO. 74,549

 

EX PARTE BOBBY J. CATE, Applicant



ON APPLICATION FOR A WRIT OF HABEAS CORPUS
FROM LUBBOCK COUNTY

Per Curiam.


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 Article 11.07, 3, et seq., V.A.C.C.P. Applicant was convicted of the offense of aggravated sexual assault and the punishment was assessed at confinement for life. The appeal of this conviction was dismissed. Cate v. State, No. 07-02-0272-CR (TxApp.Amarillo, delivered September 26, 2002, no pet.). Applicant contends he was denied his right to appeal by his attorney failing to file a timely notice of appeal along with the required motion for extension of time in which to file the late notice of appeal. The trial court entered findings of fact and conclusions of law in which it was recommended that Applicant be granted an out-of-time appeal. We agree with the recommendation.

Article 26.04 (a), V.A.C.C.P., requires that counsel appointed to represent the accused shall, "[R]epresent 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 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 proper notice of appeal unless he had been relieved of his duties by the trial court or replaced by other counsel. In the instant case the record reflects that Applicant's attorney gave a late notice of appeal but did not file an extension for the time in which to file that late notice. As a result the appeal was dismissed. We find Applicant is entitled to relief.

Habeas corpus relief is granted and Applicant is granted an out-of-time appeal from his conviction in cause number 2001-436240 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: JANUARY 29, 2003