Pena, Ex Parte Marcus

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. AP-76,676
EX PARTE MARCUS PENA, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 10-7-25,340-D-2 IN THE 377TH JUDICIAL DISTRICT COURT
FROM VICTORIA 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 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 one count of
aggravated robbery and one count of capital murder, and sentenced to life imprisonment.
Applicant contends that his appellate counsel rendered ineffective assistance because he
failed to timely file a notice of appeal. Appellate counsel filed an affidavit in which he conceded that
he miscalculated the deadline for filing the notice of appeal.
The trial court has determined that appellate counsel failed to timely file a notice of appeal.
2
We find that Applicant is entitled to the opportunity to file an out-of-time appeal of the judgment
of conviction in Cause No. 10-7-25,340-D from the 377th Judicial District Court of Victoria 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. 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: November 9, 2011
Do Not Publish