Castillo, Ex Parte Apolonio ( 2006 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. AP-75,395

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EX PARTE APOLONIO CASTILLO, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS

TRIAL COURT CAUSE NO. 1999CR4519-W1

IN THE 399^TH JUDICIAL DISTRICT COURT

FROM BEXAR COUNTY

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   Per Curiam.

O P I N I O N

   This is a post-conviction application for a writ of habeas corpus forwarded to this Court pursuant to Tex. Code Crim. Proc. art. 11.07, § 3, et seq.. Applicant was convicted of the felony offense of aggravated sexual assault, and punishment was assessed at confinement for twenty-five years. No direct appeal was taken.

Applicant contends that he was denied his right to appeal when he asked his attorney to file an appeal, but his attorney failed to do so. The trial court entered findings of fact and conclusions of law recommending that Applicant be granted an out-of-time appeal. We agree. Tex. Code Crim. Proc. art. 26.04 (j) (2), requires appointed counsel to "represent the defendant until charges are dismissed, the defendant is acquitted, appeals are exhausted, or the attorney is relieved of his duties or replaced by other counsel". The duty to perfect an appeal attaches whether counsel is appointed or retained. See Ex parte Axel, 757 S.W.2d 369 (Tex. Crim. App. 1988). The trial court found Applicant believed that his trial counsel would appeal his case, and that he was not afforded an opportunity to appeal his conviction.

Habeas corpus relief is granted and Applicant is granted an out-of-time appeal from his conviction in cause number 1999CR4519-W1 from the 399^th District Court of Bexar County. The proper remedy in a case such as this is to return Applicant to the point at which he can give notice of appeal. For purposes of the Texas Rules of Appellate Procedure, all time limits shall be calculated as if the conviction had been entered on the day that the mandate of this Court issues. We hold that Applicant, should he desire to prosecute an appeal, must take affirmative steps to see that notice of appeal is given within thirty days after the mandate of this Court has issued.

DO NOT PUBLISH

DELIVERED: May 10, 2006