Kirkpatrick, Ex Parte Stanley Wayne ( 2010 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. AP-76,265
EX PARTE STANLEY WAYNE KIRKPATRICK, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 2004-474-C2 IN THE 54TH DISTRICT COURT
FROM MCLENNAN COUNTY
Per curiam. P RICE, J., filed a concurring opinion.
OPINION ON REHEARING
We have received a Motion for Rehearing by the Trial Judge. We substitute this opinion for
our December 16, 2009, opinion, which is withdrawn on the Court’s own motion. 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 of possession of a controlled substance
and sentenced to two years’ imprisonment.
Applicant contends that he was denied his right to an appeal. On September 16, 2009, we
remanded this application for findings of fact and conclusions of law and specifically directed the
trial court to provide counsel with the opportunity to respond to Applicant’s claim of ineffective
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assistance of counsel. On November 23, 2009, we remanded this application for further findings and
conclusions because counsel failed to avail himself of the opportunity to respond. On the second
remand, counsel responded in an affidavit that after Applicant was sentenced, counsel told the trial
court that Applicant intended to appeal and requested that the trial court appoint appellate counsel.
He also said that the trial court granted his motion to “substitute out.” Counsel did not file a notice
of appeal, however, and the trial court did not appoint appellate counsel until April 21, 2009, well
after the deadline for filing a timely notice of appeal. The trial court made findings of fact and
concluded that counsel’s performance was not deficient and that Applicant “could be entitled to an
out-of-time appeal.”
We conclude that counsel’s performance was deficient and that Applicant is entitled to an
out-of-time appeal. See Ex parte Axel, 757 S.W.2d 369, 374 (Tex. Crim. App. 1988) (“We also hold
that trial counsel, retained or appointed, has the duty, obligation and responsibility to consult with
and fully to advise his client concerning meaning and effect of the judgment rendered by the court,
his right to appeal from that judgment, the necessity of giving notice of appeal and taking other steps
to pursue an appeal, as well as expressing his professional judgment as to possible grounds for
appeal and their merit, and delineating advantages and disadvantages of appeal”); Jones v. State, 98
S.W.3d 700, 703 (Tex. Crim. App. 2003) (“If the defendant decides to appeal, the attorney must
ensure that written notice of appeal is filed with the trial court”).
We find that Applicant is entitled to the opportunity to file an out-of-time appeal of the
judgment of conviction in Cause No. 2004-474-C2 from the 54th Judicial District Court of
McLennan 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
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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: February 24, 2010
Do Not Publish