Garner, Ex Parte James Guy ( 2011 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NOS. AP-76,642, AP-76,643 & AP-76,644
EX PARTE JAMES GUY GARNER, Applicant
ON APPLICATIONS FOR WRITS OF HABEAS CORPUS
CAUSE NO. 17273 IN THE 329TH DISTRICT COURT
FROM WHARTON 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 these applications for writs of habeas corpus. Ex
parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of one count
of continuous violence against the family and two counts of abandoning a child without intent to
return. He was sentenced to eight years’ imprisonment on each count.
Applicant contends that he was deprived of his right to appeal his convictions through no
fault of his own.
It is apparent from the face of the record that, though appellate counsel was appointed in
2
timely fashion, he was not notified of that appointment until well after notice of appeal could be
filed. We find that Applicant is entitled to the opportunity to file an out-of-time appeal of the
judgments of conviction in Cause No. 17273 from the 329th Judicial District Court of Wharton
County. Ex parte Riley, 193 S.W.3d 900, 902 (Tex. Crim. App. 2006). 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.
Delivered: September 21, 2011
Do Not Publish