Powell, Stewart Ray ( 2022 )

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IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-94,068-02
EX PARTE STEWART RAY POWELL, Applicant
ON APPLICATION FOR WRIT OF HABEAS CORPUS
CAUSE NO. 1098422-A IN THE 183RD DISTRICT COURT
FROM HARRIS COUNTY
Per curiam. NEWELL, J. concurred.
OPINION
Applicant was convicted of driving while intoxicated, third or more, and sentenced to
eighteen years’ imprisonment. He filed this application for a writ of habeas corpus in the county of
conviction, and the district clerk forwarded it to this Court. See TEX . CODE CRIM . PROC. art. 11.07.
Applicant contends, among other things, that he was denied his right to an appeal because
trial counsel failed to timely file a notice of appeal. On September 14, 2009, the trial court entered
an order designating issues and seeking an affidavit from both trial and appellate counsels. After no
further action on the trial court’s part, the district clerk forwarded this applications to this Court
under Texas Rule of Appellate Procedure 73.4(b)(5) in August 2022.
The record reflects that Applicant informed counsel that he wished to appeal and appellate
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counsel was appointed, but not until approximately 60 days had passed. Appellate counsel could not
file a notice of appeal and Applicant filed this habeas application to obtain an out of time appeal, but
no timely action was taken by the county. Based on this Court’s review of the record, we find
Applicant is entitled to relief.
Relief is granted. Ex parte Axel, 757 S.W.2d 369 (Tex. Crim. App. 1988); Jones v. State,
98 S.W.3d 700 (Tex. Crim. App. 2003). Applicant may file an out-of-time appeal of his conviction
in cause number 1098422 from the 183rd District Court of Harris County. Within ten days from the
date of this Court’s mandate, the trial court shall determine whether Applicant is indigent. If
Applicant is indigent and wants to be represented by counsel, the trial court shall appoint counsel
to represent him on direct appeal. Should Applicant decide to appeal, he must file a written notice
of appeal in the trial court within thirty days from the date of this Court’s mandate.
Because we grant relief in the form of an out-of-time appeal, Applicant’s remaining
claims challenging his conviction are dismissed. Ex parte Torres, 943 S.W.2d 469, 475 (Tex.
Crim. App. 1997).
Copies of this opinion shall be sent to the Texas Department of Criminal Justice–Correctional
Institutions Division and the Board of Pardons and Paroles.
Delivered: December 21, 2022
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