IN THE COURT OF CRIMINAL APPEALS
OF TEXAS



NO. 74,579

 

EX PARTE JONATHAN SHANE ROSS PEAKE, Applicant



ON APPLICATION FOR A WRIT OF HABEAS CORPUS
FROM MONTGOMERY 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 aggravated robbery and punishment was assessed at confinement for thirty years. The appeal of this conviction was dismissed. Peake v. State, No. 09-02-00102-CR (Tex.App. - Beaumont, delivered May 2, 2002, no pet.). In this petition the Applicant contends he was denied his right to 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 due to counsel's ineffectiveness in failing to protect his client's appellate rights. We agree with the recommendation and its basis.

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 notice of appeal unless he had been relieved of his duties by the trial court or replaced by other counsel. The record reflects that counsel did not file a timely notice of appeal or take steps to ensure that the notice which was given was effective. We find Applicant is entitled to relief due to counsel's ineffective performance.

Habeas corpus relief is granted and Applicant is granted an out-of-time appeal from his conviction in cause number 01-08-05233-CR from the 359th District Court of Montgomery 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DO NOT PUBLISH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: February 26, 2003