This is a post-conviction application for a writ of habeas corpus forwarded to this Court pursuant to Article 11.07, V.A.C.C.P. Applicant was convicted of aggravated robbery and punishment was assessed at 35 years in prison. The appeal of this conviction was dismissed because notice of appeal was not timely filed. Rutherford v. State, No. 13-00-00390-CR (Tex.App. - Corpus Christi, opinion delivered August 31, 2001).
Applicant contends that he was denied the right to appeal because counsel failed to file a timely notice of appeal. The record reflects that the motion for new trial was filed one day late, so the notice of appeal which was filed later was not timely. The trial court recommends that relief be granted. We agree.
Habeas corpus relief is granted and Applicant is granted an out-of-time appeal from his conviction in cause number 19797 from the 354th Judicial Court of Hunt 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 filed in the trial court within thirty days after the mandate of this Court has issued.
DO NOT PUBLISH
DELIVERED: February 26, 2003