              IN THE COURT OF CRIMINAL APPEALS
                          OF TEXAS
                                         NO. WR-67,951-02


                       EX PARTE ERIC DEWAYNE SMALL, Applicant


                  ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                   CAUSE NO. 985103IN THE 209TH DISTRICT COURT
                              FROM HARRIS 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 murder and

sentenced to ninety-nine years’ imprisonment.

        Applicant contends that he was denied the opportunity to file an appeal. Counsel filed an

affidavit with the trial court. The trial court found his affidavit credible and determined that

Applicant did not have the opportunity to file an appeal. The trial court made no recommendation.

We conclude that there was a breakdown in the system. Ex parte Riley, 193 S.W.3d 900, 902 (Tex.
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Crim. App. 2006). We find that Applicant is entitled to the opportunity to file an out-of-time appeal

of the judgment of conviction in Cause No. 985103 from the 209th 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. It appears that Applicant is

represented by counsel. Within ten days of the issuance of this opinion, the trial court shall determine

if Applicant is represented by counsel, and if not, 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.

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

Institutions Division and Pardons and Paroles Division.



Delivered: May 7, 2014
Do not publish
