Tyeskie, Cabien Keshane ( 2023 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-94,838-01
EX PARTE CABIEN KESHANE TYESKIE, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 50975-B-H-1 IN THE 124TH DISTRICT COURT
FROM GREGG COUNTY
Per curiam. YEARY , J., concurred.
OPINION
Applicant was convicted of aggravated robbery and sentenced to thirty years’ imprisonment.
His direct appeal was dismissed for want of jurisdiction because notice of appeal was not timely
filed. Tyeskie v. State, No. 06-22-00118-CR (tex. App. — Texarkana October 20, 2022) (not
designated for publication). 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 that he was denied his right to an appeal because counsel failed to timely
file his motion for new trial and notice of appeal. This Court has consistently held that it is trial
counsel’s responsibility to file notice of appeal if the defendant indicates a desire to appeal. Jones
v. State, 98 S.W.3d 700, 703 (Tex. Crim. App. 2003). However, in this case the trial court
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apparently appointed appellate counsel on the same day Applicant was sentenced, without insuring
that a motion for new trial or notice of appeal had been filed. Appointed appellate counsel learned
that Applicant had retained appellate counsel, and filed a motion to withdraw from the representation
within the thirty-day period for filing notice of appeal, but the trial court did not grant the motion to
withdraw until after the thirty-day period had elapsed. Retained appellate counsel filed an untimely
motion for a new trial and notice of appeal after appointed appellate counsel had filed the motion
to withdraw, after the thirty-day deadline had passed, but before the trial court granted the motion
to withdraw.
It appears that Applicant is entitled to an out-of-time appeal on the basis of a “breakdown in
the system.” Relief is granted. Ex parte Riley, 193 S.W.3d 900 (Tex. Crim. App. 2006). Applicant
may file an out-of-time appeal of his conviction in cause number 50975-B from the 124th District
Court of Gregg 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.
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: June 7, 2023
Do not publish