Black, Ex Parte Joseph Patrick ( 2007 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. AP-75,776

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EX PARTE JOSEPH PATRICK BLACK, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. W219-80239-04 (HC) IN THE 219^TH DISTRICT COURT FROM COLLIN COUNTY

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   Johnson, J. would also grant as to count one.

Per curiam.

O P I N I O N  

   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 pleaded guilty and was convicted of four counts of sexual assault of a child and sentenced by a jury to twenty years' imprisonment on each count.

Applicant contends that he was denied his right to appeal because the trial court failed to appoint him an appellate attorney until after the deadline for filing a notice of appeal had passed. The trial court pronounced sentence as to count one on May 6, 2005, but failed to pronounce sentence as to counts two, three and five until August 19, 2005. Applicant filed pro se notices of appeals on all counts on June 13, 2005. Applicant had not previously made known his desire for appeal. Notice of appeal as to count one was late, but counts two, three and five were not appealable until sentence was pronounced by the trial court. The Court of Appeals dismissed all Applicant's notices of appeal on November 4, 2005. Black v. State, No. 05-05-00889-CR (Tex. App.-Dallas, delivered November 4, 2005).

The trial court has determined that Applicant failed to timely file notice of appeal on count one, but should be given the opportunity to appeal counts two, three and five. We find, therefore, that Applicant is entitled to the opportunity to file an out-of-time appeal of the judgments of conviction in Cause No. 219-80239-04 for counts two, three and five, from the 219th Judicial District Court of Collin 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. 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 written notices of appeal in the trial court within 30 days after the mandate of this Court issues.

Applicant's claims as to count one are denied. Applicant's remaining claims as to counts two, three and five are dismissed. Ex Parte Torres, 943 S.W.2d 469 (Tex. Crim. App. 1997).

Delivered: October 10, 2007

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