EX PARTE CARLOS MENDOZA, JR. (other)

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. AP-76,058

EX PARTE CARLOS MENDOZA, JR., Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 1077076-A IN THE 228TH DISTRICT COURT

FROM HARRIS COUNTY

           Per curiam.

O P I N I O N

            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 30 years’ imprisonment. The First Court of Appeals dismissed his appeal because his notice of appeal was untimely filed. See Mendoza v. State, No. 01-07-00067-CR, (Tex App– Houston [First Dist.], 2007, no pet.) (not designated for publication).

            Applicant contends that his counsel rendered ineffective assistance because she failed to timely file a notice of appeal. On April 11, 2008, the trial court ordered counsel to file an affidavit in response to Applicant’s habeas allegations. On July 1, 2008, trial counsel filed an affidavit in response to the trial court’s order. Upon review of counsel’s affidavit, the trial court determined that there were still fact issues to be resolved. On October 31, 2008, a habeas hearing was held concerning the merits of Applicant’s claim.

            On the basis of trial counsel’s testimony at the habeas hearing, the trial court found that trial counsel failed to timely file a notice of appeal. We find, therefore, that Applicant is entitled to the opportunity to file an out-of-time appeal of the judgment of conviction in Cause No. 1077076-A from the 228th Judicial District Court of Harris 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. 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: December 17, 2008

Do Not Publish