Eberhardt, Hoke H ( 2013 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-79,963-01
EX PARTE HOKE H. EBERHARDT, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 12-05-05302-CR IN THE 221ST DISTRICT COURT
FROM MONTGOMERY COUNTY
Per curiam.
OPINION
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 one count of
aggravated assault against a public servant and one count of aggravated robbery. He was sentenced
to thirty and fifty years’ imprisonment, respectively.
Applicant contends that his counsel rendered ineffective assistance because she failed to
timely file a motion for new trial or notice of appeal.
The trial court has determined that Applicant was denied the right to appeal his sentences
through no fault of his own. We find that Applicant is entitled to the opportunity to file an out-of-
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time appeal of the judgments of conviction in Cause No. 12-05-05302-CR from the 221st District
Court of Montgomery 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.
Within ten days of the issuance of this opinion, the trial court shall determine whether Applicant is
indigent. If Applicant is indigent and wishes to be represented by counsel, the trial court shall
immediately appoint an attorney to represent Applicant on direct 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.
Copies of this opinion shall be sent to the Texas Department of Criminal Justice-Correctional
Institutions Division and Pardons and Paroles Division.
Delivered: August 21, 2013
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