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Ex parte Wheat

Court of Criminal Appeals of Texas

December 18, 2013

EX PARTE JAMES PAT WHEAT, Applicant

Do not publish

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. CCC-13-20003A IN THE 52ND DISTRICT COURT FROM CORYELL COUNTY

OPINION

PER CURIAM.

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 aggravated sexual assault of a child and sentenced to seventy-five years' imprisonment.

Applicant contends that his trial counsel rendered ineffective assistance because counsel failed to timely file a notice of appeal. After conducting an evidentiary hearing, the trial court has determined that counsel failed to timely file a notice of appeal and recommends that a late appeal be granted.

This Court agrees that Applicant is entitled to the opportunity to file an out-of-time appeal of the judgment of conviction in Cause No. FISC-09-20003 from the 52nd District Court of Coryell 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. This Court holds 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.

Copies of this opinion shall be sent to the Texas Department of Criminal Justice-Correctional Institutions Division ...


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