Foster, Ex Parte Anthony Charles, Jr. ( 2011 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. AP-76,467
EX PARTE ANTHONY CHARLES FOSTER, JR., Applicant
ON REHEARING ON THE COURT’S OWN MOTION
OF APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 18,072-A IN THE 47TH DISTRICT COURT
FROM RANDALL 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 aggravated
robbery and sentenced to thirty-five years’ imprisonment.
Applicant contended that his counsel rendered ineffective assistance because he failed to file
a notice of appeal. We remanded this application to the trial court for findings of fact and
conclusions of law. The trial court determined that counsel failed to file a notice of appeal. We
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granted Applicant an out-of-time appeal by an opinion issuing on December 15, 2010. However,
we did not instruct the trial court to appoint appellate counsel, and no action was taken on
Applicant’s appeal after this Court’s mandate issued until the deadline for filing notice of appeal had
passed.
Given the facts before this Court, we now reconsider sua sponte our previous disposition.
We therefore withdraw our prior opinion and substitute this opinion. We find that Applicant is
entitled to the opportunity to file an out-of-time appeal of the judgment of conviction in Cause No.
18,072-A from the 47th Judicial District Court of Randall 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: June 15, 2011
Do Not Publish